Baroness Scotland of Asthal: My Lords, perhaps I may make a personal statement. I have to make an abject apology to the House. In answering a Question yesterday, I said to the noble Earl, Lord Onslow, that I was confident that,
	"he understands the rules of sub judice, just as every other person in the House does".—[Official Report, 4/7/06; col. 136.]
	It is clear to me now that I was wrong and that the noble Earl understands them rather better. The rules of sub judice do not apply where the applicant has exhausted all available legal avenues in the United Kingdom, which the three bankers have. There are still sensitivities because, as I indicated to the noble Lord, Lord Strathclyde, yesterday, other cases on similar grounds are going though the courts. But, for having misled the House in that way, I give my wholehearted and unreserved apology to the House.

Lord Drayson: My Lords, as a percentage of GDP, UK defence expenditure has gone down. That is because the rate of GDP increase has accelerated. The important measure is the absolute amount in real terms spent on defence. We are at the end of a sustained period of increases in real terms defence expenditure under this Government, matching that expenditure to the level of commitments that we face. That is the key measure.

Lord Desai: My Lords, can my noble friend confirm my recollection that the first decline in the percentage of defence expenditure came in 1994—I welcomed it at the time—under the Government of those on the Benches opposite? Is it not also true that what you include in defence expenditure and what you do not is very much a matter of national income accounting? For example, if you include pensions, that will considerably enhance the percentage but not improve your defence commitments?

Lord Drayson: My Lords, I am grateful to my noble friend for his points. He is correct that, under the party opposite, there was a significant real terms decrease in defence expenditure, which was a reflection of the changes that came about at the end of the Cold War. The track record of this Government shows that, since 1997, there has been a sustained increase in real terms defence expenditure. That is the number that we should focus on.

Lord Campbell of Alloway: My Lords, why, ifthe requirements of our forces to which my noble friend Lord King of Bridgwater has referred are complied with, sourced and adequate, comparison with other developed states with a disparate series of requirements is relevant in any sense?

Lord Warner: My Lords, with the permission of the House, I wish to repeat a Statement on community hospitals made in the other place. The Statement is as follows:
	"In the White Paper Our health, our care, our say: a new direction for community services in January, we outlined our proposals to create a new generation of community hospitals and services. Today I am announcing that we will make available up to £750 million of public capital investment to realise that vision and I am publishing guidance on how primary care trusts can access this money. A copy of the guidance, Our health, our care, our community: Investing in the future of community hospitals, has been placed in the Library, and copies are available for honourable Members from the Vote Office. "Developments in medical technology and clinical practice are making it possible to provide far more care in local communities closer to where people live and even in people's own homes. During the unprecedented public consultation for Our health, our care, our say, people made it clear that whenever it is safe and effective they want more convenient local and personal services with more consultations, diagnostic tests and treatments carried out in local facilities. Moving more services out of acute hospitals and into communities will help improve care for patients and deliver better value for money for taxpayers. "Mr Speaker, we are already making a major investment in GPs' premises and health and care centres, as well as community hospitals. One billion pounds of capital has been invested through the NHS local improvement finance trusts alone. We will now take the next step by making up to £150 million of capital available starting this year, and for each of the next five years—a total of up to £750 million—for the development of a new generation of community hospitals and services."This investment capital will be available to primary care trusts for a wide range of community schemes, including the redevelopment of some existing cottage hospitals. Services could include both in-patient and out-patient facilities, diagnostic tests, specialist clinics, minor surgery, health and social care services for people with long-term conditions, dentistry, rehabilitation, and palliative care and other services. For people who are seriously ill or injured, or people needing complex treatments, care will of course remain in acute hospitals, where patients can be treated by specialist teams using the most advanced technology. "Primary care trusts that want to use the new investment capital will need to engage fully with local people to ensure that services are truly designed around the needs of patients and users. They will also be expected to work closely with other local partners, including GP practices and other NHS services, the local council, voluntary organisations and others in the independent sector to develop effective plans. "We made it clear in the White Paper that decisions on the long-term future of existing community hospitals should not be made solely in response to short-term budgetary pressures that are not related to the viability of the community facility itself. We have asked strategic health authorities to assure themselves that all PCT proposals for changes to community hospitals are consistent with the long-term strategy of the White Paper to move care closer to patients' homes, and to be reassured that local people have been properly consulted. "Ultimately, however, changes in the configuration of local healthcare services in a particular area need local decision-making. Primary care trusts, with their broad perspective across hospital, community and primary care, are best placed to make those decisions in consultation with local people and their strategic health authority. This new investment fund will make it easier for PCTs to get the right services in the right place for the people they serve. "Primary care trusts will be able to choose how they use the new capital available: investing it simply as public capital, extending the scope of their local investment finance trust scheme or adopting a new approach, a community venture. This is a more flexible joint venture approach that will provide the opportunity for a wider range of public, voluntary and private parties to pool their skills, or indeed their investment, for the benefit of the local community. Which model is adopted will be a matter for the PCT to decide. "Whatever model is chosen, primary care trusts will of course need to demonstrate that investment proposals are sustainable and can be funded over the longer term. As we set out in the White Paper, we expect to see a strategic shift in how the NHS provides care, with a redirection of funding to support the provision of more convenient services in local communities. Primary care trusts that already have advanced plans for community services should submit their proposals to their strategic health authority by the end of September 2006. For schemes ready to start in 2007-08, proposals should reach the SHA by the end of December 2006, after which there will be a regular rolling programme managed through strategic health authorities."This new programme builds on the unprecedented investment that we have already made in the NHS. It will help to ensure even better services for patients, with better value for money. I commend it to the House".
	My Lords, that concludes the Statement.

Earl Howe: My Lords, the House will be gratefulto the Minister for repeating the Statement. An announcement of new money for healthcare will always look like good news, and I very much hope that over the next five years this investment fund will provide a beneficial source of service improvements to patients throughout the country and to the PCTs that serve them.
	At the same time one wonders how new this money is and how significant it will prove to be. These are capital moneys. Last year the NHS's capital budget was underspent by £1.162 billion. There is no shortage of capital at this level. The shortages are in revenue funding. Over the past few months community hospitals have been closing not because PCTs have lacked capital, but because they have found their revenue budgets under acute pressure.
	What I should like to hear from the Minister in the first instance, therefore, is how PCTs can confidently bid for money from this investment fund to build new community facilities when their revenue budgets are likely to be insufficient to enable them to fund the services that those facilities would provide. I do not believe this to be an uncommon situation. Indeed, the problem has been brought into even sharper focus this year as a result of the decision by Ministers to top-slice the growth money going to PCTs. How can PCTs afford to develop their services if the growth money has been cut back in this way?
	We all understand the desirability of shifting services out of acute settings and into the community—not just into intermediate care but, if it is possible and safe, into patients' own homes. The Government have made numerous promises to create new community hospitals in local settings. They have spoken about the need to listen to local opinion and the wishes of doctors and patients in an area. Yet in parallel with those promises we have seen community hospitals closing. Whenever Ministers have been challenged on this, they say that it is a matter for PCTs. They talk of the need to reconfigure services.
	I have grave doubts about the evidence base on which some of those assurances are founded. If you talk to Members of the other place in whose constituencies hospitals have closed, they speak not of reconfiguration driven by local wishes but of a diminution of services driven by budgetary constraints, and in the teeth of local opinion. Those constraints have their origins in part in the tariff. PCTs purchase care packages in acute settings on behalf of patients, and the tariff for that includes an element of recuperative care. If, following a patient's treatment in hospital, it is considered that he can safely be moved out of the acute setting and into an intermediate care setting, the PCT has to find additional money to pay for that intermediate care, even though the original payment to the acute trust supposedly includes an element of post-operative care. What is happening to avoid that situation? My understanding is that the so-called unbundling of tariffs, separating out the acute portion of care from the intermediate care portion, will not happen until 2007-08 at the earliest. Is that correct?
	I wonder whether the Minister is able to answer a couple of further questions. When PCTs examine the possibility of building a new community hospital, what population base should they regard as appropriate for such an investment? The language on this subject up to now has been that a community hospital should serve a population base of around 100,000 people. The language in the document published today is couched slightly differently. It speaks of community hospitals serving small populations rising to about 100,000. Is there any significance in that subtle change of language? Could it mean, for example, that a town of 40,000 people could warrant a separate community hospital? What range of population do the Government have in mind?
	I also want to ask the Minister about partnerships between PCTs and non-NHS bodies in providing community services. To what extent have such partnerships, about which the Government have spoken warmly in the past, been pursued as an option by PCTs? Potentially, such partnerships offer considerable promise to the development of effective services, and it would be interesting to hear from the Minister how far they have developed.
	Finally, I revert to the issue of hospital closures. We all, surely, want it to be the case that if a closure takes place it does so as a result of careful deliberation of what constitutes the best configuration of community and domiciliary services for patients in an area. We understand that represents government policy. What steps will the Government take to make sure that strategic health authorities and PCTs receive thenecessary guidance to place their decision-making on hospital closures on a footing that will command the confidence of local communities and will be seen tobe both fair and thorough?

Lord Warner: My Lords, I am grateful for the noble Baroness's support. I share her view that we need to make these new facilities sustainable and cost-effective. What is changing, and what people who read the document carefully will realise, is that we are trying to raise people's sights in terms of the range of services—diagnostic services, in particular—that can be made available. Medical technology and knowledge have moved on. We are able to provide many more procedures on a day care basis. That is another opportunity that probably was not available in the same way in the 1970s and 1980s.
	The examples in the document show that people are already putting together a much wider range of services than were traditionally provided in a cottage hospital. The NHS is much better at business planning, and the document emphasises the importance of putting together a range of services that meet people's needs and can be funded over the long haul. I hope that that reassures the noble Baroness. We shall ensure that the strategic health authorities oversee these plans so that they are sustainable for local communities.

Lord Walton of Detchant: My Lords, I welcome the Minister's Statement. It concentrates on capital provision for building new community hospitals, but is there a possibility that community hospitals that have closed may benefit from this new money if local circumstances allow? For example, some years ago, I was greatly involved in a campaign to save a much-loved community hospital in Burford, in the Cotswolds, which provided in-patient care for patients discharged from acute hospitals, had a newly built local accident and emergency department—which had been paid for by more than £200,000 raised locally—and provided outpatient services, minor surgery and many other services. If local primary care trusts agree, could some of this money be used to reopen that hospital, which is still—to use a common phrase—fit for purpose?

Lord Warner: My Lords, where local primary care trusts and other stakeholders decide that a particular facility could be refurbished or reopened to meet a particular need and have a well-thought-out plan that can be sustained financially, it will be possible for them to seek capital money to redevelop or reopen those facilities, provided the services are what the local community needs and can be sustained.

Baroness Buscombe: I speak to Amendments Nos. 1, 8 and 10. Amendment No. 1 attempts to strengthen the commitment made in the Bill to the high standards of education and the promotion of the potential of every person attending our schools. I say "person" because our Amendments Nos. 8 and 10 seek to clarify the definition of children and young adults attending our schools. I prefer to define those children and young adults as people. I have teenage sons and a teenaged daughter who I know would seriously object to being referred to as "children".
	Amendment No. 1 first and foremost reinforces the duty to promote high standards in schools and the fulfilment of potential. While the Bill states that as an intention, I remain wary of its precise wording. My amendment is prompted in part by a letter from the Minister in another place to my honourable friend Nick Gibb MP. The Minister stated that, as the Bill stands, local authorities will have a duty to act "with a view to" promoting high standards, fulfilment of potential and fair access, which I will address in a moment. He added:
	"As the duty is to act 'with a view to', it will be a 'target duty'—that is confirmed by Parliamentary Counsel".
	He went on to say that the clause would be the,
	"overarching expression of the Government's aspiration that improvements in standards should benefit children from all backgrounds and circumstances".
	While that principle is entirely in line with the thinking from these Benches, I believe that we are in danger of expecting aspiration to produce a reality.
	The amendment would place a solid duty on local education authorities to promote high standards and the fulfilment of potential. The key word is "promote". This is not a duty to produce high standards—that is the job of schools, not local authorities. A direct duty, as laid out in my amendment, would instil in every local authority a working function of promoting high standards and the fulfilment of potential.
	My amendment also omits the reference to "fair access" added to the Bill in another place. I confirm to the Committee that that omission is in no way an attempt to prevent children from all backgrounds and walks of life having access to whichever school they wish. Rather, I did not see the merit of its inclusion. Clause 1(1)(c) states that local authorities need to ensure,
	"the fulfilment by every child concerned of his educational potential".
	Paragraph (a) provides that high standards must be promoted. The net effect of those two paragraphs will, if they are successful, be to ensure that each individual child receives an education that fulfills his potential to a high standard.
	I should be grateful if the Minister could inform the Committee precisely what the inclusion of "fair access" contributes to those aims and could give me a precise definition of "fair" in this context. I fear that although it may look perfectly harmless in the Bill, the inclusion of a fair access clause without the appropriate definition could encourage local authorities to stifle diversity in favour of the "deadening uniformity" that the Bill is intended to get rid of.
	I want to ensure that the Bill is remembered for its effectiveness, not merely its intention. I look forward to the Minister's response on both those matters and I beg to move.

Lord Judd: I rise to speak to Amendment No. 2 standing in my name and that of my noble friend Lord Plant and the noble Baroness, Lady Stern. They asked me to make plain that they are very sorry not to be in the House this afternoon. They are members of the Joint Committee on Human Rights, of which I am also a member, which is paying an important front-line visit in the context of its current inquiry into human trafficking. I have, as it were, leave of absence to be here. In that context, it may be appropriate to mention that our concern arose as a result of our examination of the Bill in the Joint Committee on Human Rights. There has been a great deal of correspondence with the Minister and we very much appreciate his always fulsome replies.
	The purpose of my amendment is to make the same provision for a statutory right to education in England and Wales as is made for Scotland in the Standards in Scotland's Schools etc. Act 2000. I know that my noble friend will argue that that right is well established in the first protocol of the European Convention on Human Rights and in Article 28 of the United Nations Convention on the Rights of the Child. If that right is established in those conventions to which we as a nation have voluntarily put our names, why on earth not spell it out clearly in the Bill? The purpose of the amendment is to state categorically the right of the child in this context from which all else will follow. It also spells out the responsibility of the local education authority to ensure that that right is fulfilled.
	When one looks at the drafting of the Bill, it is fair to say that it is a little tentative. It talks about target duties and,
	"so far as it is possible".
	The amendment would provide that the basis of everything in our educational policy was the right of the child to education, established in law, which is paramount, and that that is the fundamental point of reference. We think it would strengthen the Bill. I feel very excited about much of what is in the Bill, but it is a pity that we have not taken the opportunity to spell out in it what we subscribe to in the conventions, and I do hope that my noble friend will feel able seriously to look at this.
	Quite apart from his correspondence with the Joint Committee, the Minister has been good enough to have full correspondence with me as well, which I greatly appreciate. I know that he and the Government attach considerable importance to the ruling of the noble and learned Lord, Lord Bingham, in the Ali v Lord Grey School case in 2006, who rejected the Court of Appeal's finding that the article had been breached by an unlawful exclusion and outlined the way in which the law in England and Wales fulfils the convention rights. As the Minister pointed out in his letter to me, the noble and learned Lord, Lord Bingham,
	"explained that the responsibility for ensuring education rests on what has been called a 'fourfold foundation':
	The first element being the duty of parents under Section 7 of the Education Act 1996 to cause their children to receive efficient and suitable full-time education either by regular attendance at school or otherwise;
	The second element is the Secretary of State's duty under Section 10 of the Education Act 1996 to promote the education of the people of England and Wales;
	The third element is that the LEAs are required by Section 13 of the Act to secure that efficient education is available to meet the needs of the population of their area; and
	The fourth element is to maintain the schools themselves; each school is under the direction of its governing body, who must conduct the school with a view to promoting higher standards of educational achievement at their school".
	We would all applaud that, but what it simply does not state is that the child has a fundamental legal right to education. We have missed an opportunity to state something that would put everyone in the position of having to ensure that that right is fulfilled.

Baroness Walmsley: Before I speak to my Amendment No. 7 in this group, perhaps I may make one or two comments about what has been said on the earlier amendments. First, I must express surprise that the Official Opposition want to remove the reference to "fair access" from the Bill. The noble Baroness, Lady Buscombe, said that she felt that it might stifle diversity, but on these Benches if we were given a choice between diversity and fair access, we would choose fair access any day.
	I very much agree with the noble Lord, Lord Judd, on the need to give every child a right to an education. Our Amendment No. 24 on the education authority being the provider of last resort for children not receiving a suitable education would achieve roughly the same thing. I support the noble Lord's wish to put this principle, based on the Convention on the Rights of the Child, at the beginning of the Bill. We also support the noble Lord, Lord Rix. I feel very sad that the evidence about the activities of some academies means that we need his Amendment No. 6. On his Amendment No. 9, I hope that he will support our Amendment No. 183, which requires SEN training for teachers at every stage of their training.
	Amendment No. 7 would tie the highly desirable objective of promoting individual fulfilment to a personalised learning approach and access to the appropriate resources. When a similar amendment was debated in another place, the Minister said that personalised learning was a key part of the Government's proposition in Clause 1. We agree with that and welcome it. He also pointed out that new funding would be available to support personalised learning. We welcome any new funding, but we question whether it will be enough. I shall say more about that later. The Minister then pointed out that the effect of the amendment would be to rule out some other local authority functions that also have a bearing on a child's attainment, apart from teaching and learning, such as those concerning admissions systems, transport, pastoral support or extended services.
	Our intention in tabling this amendment is to probe the Government on the practicalities of fulfilling their welcome commitment to personalised learning. It is certainly not intended to rule out all other local authority functions that have a bearing on a child's attainment. Perhaps if we pursue this amendment, we ought to change it to "teaching and learning" and other support.
	However, the DfES has stated that personalised learning complements and delivers aspects of the Every Child Matters agenda. The outcomes of this, which focus on giving every child the support they require whatever their needs, abilities, background or circumstances, link closely with the possibilities created by personalised learning to tailor learning and to tackle all the barriers to learning. The 2005 White Paper, Higher Standards, Better Schools For All, discusses personalised learning in detail. It refers to an education system that focuses on the needs of the individual child. However, the provision of personalised learning outlined in the White Paper focuses on,
	"intensive small-group tuition in literacy and numeracy for those falling behind...and extra stretch for the gifted and talented".
	It seems to focus on outcomes rather than the whole child. While these two aspects are critical, I suggest that the document reflects a narrow view of personalised learning which focuses largely on its provision. For example, too many children struggle with their communication skills, those of listening and speaking. We need a national strategy to help all schools deal with that issue.
	A commitment to personalised learning has very wide implications for the workforce and for the curriculum. The school workforce remodelling agenda, with its impact on the role of the teacher, the management of a wider range of professionals and on the organisation of a range of resources, has considerable implications for the way learning is structured in the future, both in and out of school. The NUT document, Bringing Down the Barriers, argues that two conditions need to be established for personalised learning to succeed. It states that a fundamental review of the national curriculum and its assessment arrangements is essential to meeting the aspirations of personalised learning and that young people need to be able to experience and teachers need to be able to provide much more one-to-one teaching. So these are the very broad implications of the Government's new commitment to personalised learning. Can the Minister assure us that they will be looked at and that there will now be an entitlement for every child to personalised learning so that he or she can fulfil their educational potential, and that schools will have the appropriate resources to actually deliver it?

Baroness Warnock: I rise to support what has just been said and to express my particular support for Amendments Nos. 7 and 9 in this group. One of the main aims of the Bill is to enable children to have personalised learning, which would entail local authorities having a statutory duty to ensure that the services are available. I am thinking in particular of services such as speech therapy which cannot be supplied by the regular teacher, however well trained. At the moment it lies in an ambiguous area because local authorities often claim that they cannot ensure the provision of speech therapy that children urgently need.
	Communication difficulties can be the most terrible obstacle for those children with severe disabilities in this area being educated in mainstream schools. Without learning the skills of communication, they really cannot possibly fulfil their educational potential. This is an example of where a statutory duty on local authorities to enable a child,
	"to have access to such teaching and learning support as may be appropriate",
	is a matter of crucial importance if the Government's general policy is to go forward. I strongly support Amendments Nos. 7 and 9.

Lord Lucas: I should like to take this opportunity to explore what the Government currently understand by the words "educational potential". How broad a definition of "educational" are they intending here? Do ball skills come under education, or is it merely being able to get through the numeracy hour that counts as education? What boundaries do the Government currently set on this? What do the Government mean by "potential" and how is a school or local education authority supposed to assess it? What instruments are to be used and what measure may an LEA apply to say "Yes, we have done this. This child has fulfilled their educational potential."? If we are putting a duty on authorities, we must give them some ability to know that they have fulfilled it. However, I do not really see how it can be done.

Lord Northbourne: I am confused and should like some guidance from the Minister. My first point concerns Amendment No. 1, tabled by the noble Baroness, Lady Buscombe, on primary duties. I am not entirely clear what a primary duty is. The Education Reform Act 1998, which I regard as an important anchor point indeed for the educational system, states that the Secretary of State, the local education authority and/or the governing body have to,
	"exercise their functions...with a view to securing that the curriculum for the school...promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society; and...prepares such pupils for the opportunities, responsibilities and experiences of adult life".
	I think that that is a supremely good definition of education. Would Amendment No. 1 in any way change the emphasis? Would that definition remain in place if Amendment No. 1 were accepted?
	Secondly, I entirely support the noble Baroness, Lady Buscombe, in asking the Minister whether he will kindly give a clear definition of fair access. Is fair access going to be defined in regulations? If it is, could we please see a draft of the regulations or have an idea of what they will say? I am not suggesting that there are not reasons for having a general, sweeping idea of fair access, but it will be very difficult when it has to be applied. There are not and never will be infinite resources for education, and choices therefore have to be made. Gifted children, for example, concern me very much. What is fair access for a gifted child? Is it simply fair access to a more or less "bog standard" school, or is it access to a school that will stimulate that child and cause him to succeed and fulfil his potential? I believe that nearly all children—not all children, but nearly all children—thrive on competition provided the competition is such that they can succeed at least from time to time. That inevitably implies that children must learn alongside other children of more or less equal ability and who have received more or less the same training and experience in life to give them a chance to be able to compete and to stimulate one another to succeed.
	How will that be secured? In very large schools, it may be possible to secure it by having forms of streaming and dividing into different sectors within the school. However, we have at home, in a house belonging to my family, a small school. At the moment it has 12 pupils and is thinking of increasing the number to 18. These children have a very special need and cannot cope in a big school. They have failed in a big school—they have been a disaster in a big school—whereas they are doing very well in this small school. Small schools cannot provide for a huge range of academic ability.
	What about ability in subjects that are outside the academic curriculum? I know of two children who have quite exceptional musical ability. What is fair access to schooling for a child who has quite exceptional musical ability? These are the kinds of question that have to be answered, and I think we need to know the kind of answers that the Government are going to give.

Baroness Williams of Crosby: I follow what the noble Baroness has just said and commend it very much to the House. I am sorry that we have not been able to take Amendment No. 1 with Amendment No. 3, in the same discussion, because Amendment No. 3 puts particular emphasis on the well-being of children and matches it up with the substantial objective of fulfilling children's educational potential. Because we have not taken them together we perhaps do not draw sufficient attention to the point made by my noble friend Lady Walmsley—that the issues of well-being and fair access are very much part of what one wants to see in an educational system. One difficulty with the amendment of the noble Baroness, Lady Buscombe, is that it puts almost the entire emphasis on the issue of academic standards and of potential being fulfilled, in that rather specific and somewhat limited sense.
	We live at a time when our schools are rightly continually driven to higher academic standards, but also when having league tables and the business of testing and examination lead to the great danger that we may leave out a large number of children who, when they have been left behind in primary school or the early stages of secondary school, gradually become more and more incapable of competing and holding up with the rest of the school community, as the noble Baroness and the noble Lord, Lord Rix, have implied. We must give great attention to statemented children, but also to a whole group of children above them who for one reason or another may find themselves bewildered by or not engaged in schooling—the children who do not get five GCSEs and so find themselves gradually drifting backwards. That is a group who are doing badly in our education system.
	One other thing that I want to say relates to the well-being of the child. We live at a time when, socially, there are huge pressures on children. I am sure that we are all aware of the real distress that many children go through—in the most extreme case because they become carers for their own parents or, in less extreme cases, because their families have broken up or they have been moved frequently throughout their young lives, when the emotional strains on them are very great and it is difficult for them to cope. There is a real danger in the present structure of our education system, with its tremendous emphasis on passing a whole steeplechase of tests and exams, that we will lose sight of some of these personal difficulties that children face. That is where Amendment No. 3 and my noble friend's Amendment No. 7 could put emphasis on some of the other factors that stand in the way of children properly learning.
	The noble Lord, Lord Rix, referred to problems of concentration for some children, which is becoming more striking among not only children with learning difficulties but those with other reasons why they find it difficult to concentrate, which may be related to their home circumstances, or to a very mild form of Asperger's or other things of that kind. Will the Minister give us some view of his understanding on the balance between these very significant and important objectives for education—on the one side, academic attainment and, on the other, the well-being of children? How, by looking at the issue of personalised education, can one go much further to help children at a very early stage to understand learning difficulties and emotional problems that may stand in the way of their attaining their full potential?

The Earl of Listowel: I support Amendment No. 9, tabled by my noble friend Lord Rix. I hope I have understood him correctly. A report, The Costs of Inclusion, was published in May this year by the University of Cambridge's Faculty of Education. It was commissioned by the National Union of Teachers concerning inclusion in schools. Its final words are:
	"The most striking aspect of this study is the goodwill of teachers who believe in inclusion and try to make it work but do not find their goodwill repaid by the level of professional support they deserve".
	The report says that it is clear that many teachers will still carry an unsustainable workload, and that:
	"The evidence demonstrates unequivocally that the needs, interest and potential of many children with special needs are not being met".
	I strongly support my noble friend's amendment.

Lord Adonis: These amendments all relate to the fundamental duties on local authorities in Clauses 1 to 3 to promote fair access and the educational potential of all children, including those with special educational needs. They therefore go to the heart of the purposes of the Bill, and indeed the purposes of education at large. They are a very good place to start in our deliberations.
	This Bill should also be seen in the context of the Childcare Bill, which some of us have spent a good part of the past two months debating, and which goes to the heart of the welcome comments by the noble Baroness, Lady Williams, about what we are seeking to do in our education system. There is no end point. We will never reach a stage where we believe the full educational potential of the entire cohort of young people has been realised. That is something we are working towards, but it will be a long road.
	We are seeking to promote both higher academic and educational standards and much more intensive support, within the education system and services provided by the state at large, for the wider social, emotional and physical needs of children and their families. That is encapsulated in the work we are doing in childcare: the development of this whole new area of the welfare state in under-five services, and the ambition that every community should, as in Scandinavia, have its own under-fives' centre that focuses on precisely the early identification of needs that the noble Baroness mentioned, and tackles parents' needs in terms of additional support right at the beginning of a child's life, so that you embed at the beginning of the process the support that they need to succeed. The Bill needs to be seen in a holistic way in conjunction with what we are seeking to do with childcare and the wider Every Child Matters agenda.
	Amendment No. 1, moved by the noble Baroness, Lady Buscombe, would, as the noble Lord, Lord Northbourne, noted, introduce a new formulation of Section 13A of the Education Act 1996, entitled:
	"Primary duties in relation to high standards and fulfilment of potential",
	in addition to a different new formulation of Section 13A, entitled simply:
	"Duty to provide high standards and the fulfilment of potential",
	which the existing Clause 1 would add. I am not clear whether the noble Baroness intends to create this hierarchy of duties, which would in practice be confusing in view of the overlap between the two sets of duties, but that is not the issue. The issue is the substantive points that she is raising about the content of the new proposed duties.
	The most notable difference between Amendment No. 1 and what is in Clause 1 is that it would remove our proposed duty on local authorities to ensure fair access to educational opportunity. I understand from what the noble Baroness said about her anxiety on the promotion of diversity that this may be based on her and her colleagues' concerns that the fair access duty could be seen to favour community schools over other categories of schools, or to imply a forced introduction of banding or other mechanisms by a local authority, which would be highly controversial in the context of individual schools.
	I hope that I can provide reassurance on both points. The fair access duty in Clause 1 applies in the context of all local authority functions relating to the provision of education. There is no case whatever for it leading to local authorities favouring one type of school over another. Indeed, one of the implications of fair access is that local authorities should be entirely fair minded in their approach to all suppliers of education in their area and not seek to favour one over another.
	All admission authorities, which include local authorities themselves in respect of community schools, will by law have to act in accordance with the new stronger school admissions code, whose aim is to promote fairer access than often applies at the moment. Local authorities will continue to be required to publish admission arrangements for all maintained schools in their area, and to work with the governing bodies of all schools which are their own admission authorities to ensure fair admission arrangements. That is another aspect of their duty to promote fair access. There is no implied power whatever for local authorities to use the fair access provision to favour community schools over other schools.
	The noble Baroness and her colleagues are also concerned about banding. Local authorities will not be forced to introduce banding in admission arrangements, although many may choose this option to promote fairer access to educational opportunity in pursuit of their duties under Clause 1. Neither will local authorities be able to force community schools to introduce banding—I know that is another concern of the noble Baroness—as we intend to table a government amendment, in response to concerns raised in another place, that would require the agreement of a community school's governing body before banding could be introduced at that school.
	I fully accept that fair access is ultimately a matter of judgment which local authorities will have to make; it could not be otherwise. There is no single yardstick of fair access. It is a judgment not only about admissions procedures but about the allocation of resources which go to the heart of decisions that local authorities have to take month in, month out. The important point about Clause 1, which replaces the existing duty for local authorities simply to provide sufficient school places, is that local authorities should be required to make that judgment and to explain it openly in their communities, whereas there is no such obligation at present.
	I turn to the amendment of my noble friend Lord Judd. In passing I pay tribute to the Joint Committee on Human Rights, which rightly obliges us to give very careful consideration to all issues which have implications for human rights. The noble Lord and his colleagues do sterling work in that respect. I will reflect on what he has said. As always, he made a very powerful case. However, as he said, I have written to him setting out why we believe that there is a legally enforceable right to school education for every child at the moment. Inevitably, because I have been writing to noble Lords, I shall summarise the arguments that I have made in those letters, which have been played back to me in noble Lords' remarks. I hope that he will forgive me if I do that to put it on the record.
	The right to education is guaranteed by Article 2 of the First Protocol of the European Convention on Human Rights, and for children by Article 28 of the UN Convention on the Rights of the Child. The United Kingdom is a party to both of those, so these rights hold force in all parts of the United Kingdom. As my noble friend recognised, Scotland has gone down the further course indicated by him in its statutory provisions. We do not believe that there is a need for us to do so in England because existing legislation and case law achieve the same purpose.
	In the recent case referred to by my noble friend which was considered by the Appellate Committee, the noble and learned Lord, Lord Bingham, set out fully how the responsibility for ensuring that education in England and Wales fulfils the convention rights, based on what Lord Wilberforce, in an earlier judgment, had called the fourfold foundation. First, there is the duty of parents under Section 7 of the Education Act 1996 to cause their children to receive efficient and suitable full-time education either by regular attendance at school or otherwise. Secondly, there is the Secretary of State's duty under Section 10 of the Education Act 1996 to promote the education of the people of England and Wales. Thirdly, there is the requirement on local education authorities under Section 13 of the Act to secure that efficient education is available to meet the needs of the population of the area in question. Fourthly, there is the fact that all state schools are under the direction of a governing body which must conduct the school with a view to promoting high standards of educational achievement. Taking those four together, they achieve the fundamental right to education that my noble friend wants.
	My noble friend has also raised separately the issue of the right to education for children who are informally excluded from school. Under Section 19 of the 1996 Act, a local education authority must make arrangements for the provision of suitable education at school or otherwise for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Government take this duty further in the Bill by adding a new duty on local authorities, to which we attach considerable importance, to identify children who are missing from education. In my time as a Minister, that has been one of the most concerning aspects of educational provision that has come my way, including some very concerning Ofsted reports on the way in which local authorities seek to identify those who have slipped through the net entirely in terms of educational provision. That is also part of the reason why we support, against the concerns that have been raised elsewhere, the information-sharing database, which will ensure that local authorities have comprehensive data on the children in their area so that they can ensure that they are placed at and attend a school.
	The duty is encompassed in Clause 4, which places a duty on local authorities to make arrangements to enable them to establish, so far as it is possible to do so, the identities of children in their area who are not receiving a suitable education. The duty applies in relation to children of compulsory school age who are not on a school roll and who are not otherwise receiving a suitable education.
	Amendment No. 6, spoken to by the noble Lord, Lord Rix, is about special educational needs and academies. I was glad to have the opportunity to discuss this and other matters with him yesterday, with colleagues from the Special Educational Consortium, on whom we depend greatly for advice on these and other matters. Academies are fully inclusive schools, which are required by the terms of the model funding agreement—a contractual agreement between the academy trust and the Secretary of State—to admit pupils with special educational needs on an equal basis with others. Academies must have regard to the special educational needs code of practice and any guidance issued by the Secretary of State relating to Sections 316 and 316A of the Education Act 1996.
	Parents with a child who has a statement of special educational needs can make representations for them to attend an academy, as they can in respect of any other state school or independent special school. The local authority is bound to consider those representations, and if it agrees with the parents that the academy is a suitable placement for the child, it will inform the academy that it proposes to name it. In this situation, academies must consider precisely the same criteria as those set out in Sections 316 and 316A of the Education Act, as would the local authority in determining whether to place a child in an academy. Academies therefore are in a comparable position to other mainstream schools, as they can only refuse to be named if admitting the child would be,
	"incompatible with the provision of efficient education for other children and no reasonable steps may be made to secure compatibility".
	Furthermore, if a local authority names a provision other than an academy in a child's statement of special educational needs, the parents of that child already have exactly the same right of appeal to the independent Special Educational Needs and Disability Tribunal as they would for a maintained school and, if following a SENDIST ruling an academy is named in a statement, the academy should admit the child.
	The noble Lord, Lord Rix, asked me what further steps we were taking to ensure that this right was enshrined. We have agreed with the president of the Special Educational Needs and Disability Tribunal (SENDIST) that the Secretary of State would, as a matter of course, uphold the decisions of SENDIST, which means that academies will be placed in the same position of maintained schools in the enforcement of SENDIST decisions. That is the legal position. The data support the view that academies are fulfilling their special educational needs duties fully, as the noble Lord recognised.
	Amendment No. 9 is tabled by the noble Lord. The aim of the special educational needs framework and the support that is provided to children with special educational needs and disabilities is precisely that all such children should be able to reach their full potential. This is reinforced by Clause 1, which states that local authorities should exercise their functions with a view to,
	"promoting the fulfilment by every child concerned of his educational potential".
	"Every child" includes every child with special educational needs and disabilities.
	Schools and local education authorities have duties to identify, assess and make suitable provision to meet a child's individual learning needs. Local education authorities in particular have a duty, where necessary, to assess children's special educational needs and to draw up SEN statements and then arrange the educational provision set out in the statements. Through a thorough multi-agency assessment, a child's individual needs can clearly be identified and the provision tailored to help that child to reach his potential.
	Regulations governing the provision of SEN information by local authorities require that the published information provides an explanation of the provision expected to be met from maintained school budgets and that which the local authority expects to provide itself from central funds. This means a clear indication of the actual services available from the local authority, and local authorities also have to keep under review their general arrangements for meeting children's special educational needs—this, too, includes the SEN support services they provide.
	Providing specialist support services from the local authority centrally is one way of making those services available, as the noble Lord recognised, but of course it is not the only way. Such services can be provided by one authority on behalf of a group of authorities, or they may be located within a school or a collaborative of schools. For example, this week we announced that we have granted specialist status to a further 14 specialist schools under the Specialist Schools Programme to recognise their specialist expertise in meeting particular needs and to enable them to do a good deal more outreach work with other schools in their communities. A key requirement of the funding is that they should share their specialist expertise with other schools, particularly mainstream schools—that was strongly welcomed in the specialist schools community. We wish to take such arrangements further and steadily to bring more special schools within the specialist schools policy, as one way of ensuring that these centres of excellence are available more widely.
	Amendment No. 7, tabled by the noble Baroness, Lady Walmsley, would alter the duties on local authorities in relation to high standards and the fulfilment of potential by more narrowly defining how the fulfilment of educational potential might be achieved. We do not believe that it is right to limit the duty in this way. I completely support the noble Baroness's desire to make a strong point about the need to focus on more personalised teaching and learning. We entirely share that objective. We need to secure personalised learning for an education system that enables every child to fulfil their potential; only by that means will we narrow achievement gaps and realise our Every Child Matters ambitions.
	The noble Baroness said that this would require a good deal of investment and I fully accept that. There has already been a 50 per cent increase in education spending since 1997 and we announced in last year's White Paper an extra £565 million earmarked specifically for personalised learning; in addition, my right honourable friend the Chancellor announced a further £365 million in his Budget this year to enable schools to go further in providing for more individualised learning in schools, including, as the noble Baroness said, small-group and one-to-one tuition—but not excluding other forms of provision, including extended schools. Increasingly, schools will make that provision by becoming extended schools to meet the needs of their pupils.
	We fully accept the noble Baroness's observation that there would be further implications for the workforce and the curriculum. This will change over time. Another important area in which this will apply is the development of new specialised diplomas, which will come in 14 vocational lines and will be introduced from 2008. They will significantly extend the school curriculum, the opportunities available to pupils and the ability of schools and local authorities to meet the educational potential of all children. The Bill contains an entitlement to those specialised diplomas but I believe that over time we will wish to make available more such provision as resources allow and as educational philosophies develop.
	Amendments Nos. 8 and 10, tabled by the noble Baroness, Lady Buscombe, would require local authorities to exercise their education functions with a view to promoting the fulfilment of every "person" rather than every "child" concerned. I understand that the noble Baroness tabled the amendments because she wants young people to be called "people" rather than "children", and I completely sympathise with the objective. Legally we could have used the word "person", and Section 13A of the Education Act 1996 uses that word. However, because this relates to the Every Child Matters issues raised by other noble Lords, I should stress that we used the term "child" rather than "person" because we wanted to align the duties in Clause 1 with the Every Child Matters agenda and, in particular, with the requirements of Section 10 of the Children Act 2004, which specifically refer to children.
	We want there to be no doubt—this meets the points raised by the noble Baronesses, Lady Walmsley and Lady Williams—that the Bill and the Every Child Matters agenda go hand in hand and that the one reinforces the other. Noble Lords who spent a lot longer than I did attending to the passage of the Children Act 2004 will know that this establishes local authorities' duties to promote the well-being of children in their area in so far as they relate to the five Every Child Matters outcomes, which include education, training and recreation. We want the wording of the two sets of provisions to be as compatible as possible.
	Once we have established this important principle, it goes without saying that we cannot just add a reference to,
	"promoting the fulfilment by every child concerned of his educational potential",
	without also defining more clearly who this is intended to cover, as the existing duties in Section 13A of the 1996 Act are couched in terms of "persons" rather than "children". Because of that, the definition of "children" in subsection (2) of new Section 13A sets out precisely what that word means, and I fear that it will include, like children of a similar age, the noble Baroness's children.
	I hope that I have made a reasonable attempt to meet the points raised in this important and interesting debate.

Lord Rix: I thank the Minister for seeing me and members of the Special Education Consortium yesterday afternoon in time for a refreshing cup of tea, which was much needed in yesterday's heat. I am sure that he will understand when I say that I should like to read his response in tomorrow's Hansard, together with my colleagues from the SEC, before we decide whether to take any action on Report.
	In the mean time, I shall not press my Amendments Nos. 6 and 9.

Baroness Buscombe: I thank the Minister for his response to my amendment and the others in the group.
	I reiterate that the purpose of our AmendmentNo. 1 was to strengthen the commitment to high standards of education and the promotion of the potential of every child attending our schools. Again, I stress that I was talking about educational potential, not necessarily academic attainment, which can mean different things for different children. We would support what the Government are trying to achieve in a holistic way.
	Perhaps it was the reference to primary duties that led the noble Lord, Lord Northbourne, to pull me up on this. Perhaps I should not have used the words "primary duties", but I did so to try to add weight to the emphasis on the need for high standards and fulfilment of educational potential. The important thing is to try to shift the duty on schools to achieve that potential. Let us remember that, under this Bill and certainly beginning with the White Paper, the local education authority is supposed to be the commissioner not the provider. A solid duty is being placed on local education authorities to promote high standards and the fulfilment of potential, and to ensure that it is the school which carries out that duty and produces high standards and achieves fulfilment of potential among its pupils. That is the purpose behind our amendment.
	I am grateful to the noble Lord, Lord Northbourne, for articulating rather better than I the need for clarity in the phrase "fair access". It concerns us, not least because the proposed new Section 13A(1)(c) mentioned in Clause 1 covers the issue of fair access, in requiring all children to have the chance to succeed and their educational potential fulfilled. Fair access is a necessary component of that goal and one could argue that to have the phrase in the Bill is otiose. Following on from the remarks of the noble Lord, Lord Northbourne, will the Minister consider writing to us on, or mentioning later this evening, the possibility of noble Lords seeing a draft of the regulations spelling out the definition of "fair access"?
	For now, however, I thank the Minister. I accept his explanation of why the word "person" is not sensible, in that he wants to ensure that there is clear consistency with other Acts and the holistic approach to education, so we must stick with "children". I will have a tough time explaining that to my children tonight. On that basis, however, I beg leave to withdraw the amendment.

Lord Dearing: I shall speak to the amendment put down by the noble Lord, Lord Best, who unfortunately cannot come today, myself and the noble Baroness, Lady Walmsley.
	The purpose of our amendment is formally to underline that the Every Child Matters agenda, as set out in the Children Act 2004, is directly relevant to the educational attainment of every child, and that the educational purposes of the Bill will not be fully achieved unless the agenda is part of its provisions. The point was argued by speakers from all three parties in the other place and taken to a vote in Committee. The amendment has the support of the Every Child, Every School coalition, which, as the Minister knows, is widely drawn and includes local authorities which would be given responsibility to give effect to our addition to the clause.
	I imagine that the Minister will tell us that this is unnecessary, because there is already sufficient legislative provision. I offer two thoughts on that. First, there is a plethora of legislation making so many demands on so many busy people that, as a necessity, they must prioritise and decide what to do. An example which may be familiar to the Minister is the emphasis given in the past—and, I hope, the future—to work experience; and how, with the subsequent emphasis on enterprise education, it has taken second place. That is the kind of thing that happens when such a weight of initiatives descends upon busy people.
	I have not counted the number of times the Bill refers to it being supplemented and complemented by guidance and regulation, but there are 480 pages of draft regulations and guidance. When that hits people outside, what do they do? They must prioritise. My concern is that the Every Child Matters part of what is necessary for the educational success of a child will get overlaid.
	Secondly, the children or young people who will suffer most from any such sidelining are those who need the help most, who need their well-being and their education to be seen as a whole. I am thinking of children from fractured and disorganised homes where the parents are heavily burdened—perhaps both of them are at work—so there is stress and anxiety and the child's needs are great.
	When this matter was discussed in another place, the Minister, Jacqui Smith, recalled the words of the former Secretary of State for Education and Skills, who told the Education and Skills Committee that the White Paper that heralded the Bill was,
	"all about driving up standards for the most disadvantaged children".
	She went on to say:
	"We have made it clear that we are happy for the measure to be applied when judging the success of the reform programme as a whole and the White Paper and the Bill in particular".—[Official Report, Commons Standing Committee E, 28/3/06;col. 52.]
	It is because of the concern, felt strongly on all sides of the House, for precisely those children that I consider this amendment necessary. It is for them. I hope the Minister will give constructive consideration to this amendment. I beg to move.

The Lord Bishop of Southwell and Nottingham: We on these Benches agree that the well-being of children is and must be paramount. That is already enshrined in law in Section 351 of the Education Act 1996. It describes the purposes of education as being the,
	"spiritual, moral, cultural, mental and physical development of pupils...and of society".
	We strongly support that.
	We regret that the five Every Child Matters outcomes, which the Government have rightly promoted since the Children Act 2004, do not fully spell out that primary purpose of education and the care of children. I echo the concerns of the noble Lord, Lord Dearing, and the noble Baroness, Lady Massey.
	None of this is inconsistent with attention to high standards in literacy and numeracy in education. Indeed, the most disadvantaged children are those best served by that attention. Surely, education is the best and, indeed many would argue, the only real means of overcoming disadvantage. That is why the Churches have been and remain committed to promoting and providing education and why we are so pleased that the vast majority of the new Church of England secondary schools, like the academies we are promoting, serve the most disadvantaged in our society.

Baroness Howarth of Breckland: I was not going to speak at this juncture, but my noble friend has allowed me to speak before him. I disagree fundamentally with the noble Baroness, Lady Buscombe, with whom I usually agree.
	It seems extraordinary to me that in the Bill, the only place where we spell out the five outcomes of Every Child Matters is under the provisions about recreation on page 6. Those are the outcomes that will underpin a child's emotional, physical and social well-being, which are the things that enable a child to learn. The Minister has heard me say this on other occasions during discussion of other legislation, but unless we look after the emotional well-being of our children—this case has been put far more eloquently by my noble friend Lord Dearing and the noble Baroness, Lady Walmsley, than I ever could—they will never make the best use of their education.
	I have spent most of my working life having what is probably a very skewed view of young people at the disadvantaged end of life and whose emotionaland physical well-being is often marred. As a consequence, they are in the schools at the bottom of the pile. Unless well-being is high on the agenda and we can take welfare to heart, education will simply not be attained by those children who the Government so strongly aim to bring up to the same high standards that we want for all our children.

Baroness Walmsley: Before the noble Lord, Lord Dearing, rises to respond, perhaps I may make three points. First, our Amendments Nos. 5 and 22 are not like Amendments Nos. 3 and 4 which seek to repeal and amend the 1996 Act; nor would we want to repeal or amend Section 10 of the Children Act 2004. Can the noble Lord confirm that an alternative approach—it is one we might consider at the Report stage—to mention in this Bill the duties under Section 10 of the 2004 Act in order to emphasise the importance of the well-being and the best interests of the child without falling into the trap he has outlined? Would he like to respond straightaway or shall I make my other two points?

Baroness Walmsley: That brings me nicely to my second point. The reason why it might be desirable to do so is to provide clarity for those reading the various Acts. The need to read one Act in the context of other Acts in terms of education policy is now becoming so complicated that perhaps we reaching the point where we should have a codification of education policy, and possibly even codification of the policy relating to other services for children. Certainly regarding education, it is now almost impossible to consider the issues in any new Bill that comes before us without recourse to a great pile of other Acts on the desk beside one. I wonder whether the Minister might consider that.
	Perhaps I may make my third point on an issue that I neglected to mention earlier. One of the many reasons why we wanted to put the well-being and the best interests of the child into this Bill is because of its concentration on consulting parents. The interests of the child are not always properly expressed by a parent's response to any consultation. It is the child who should be at the centre of this. Of course parents are vitally important and should always be consulted, but the child has to come first. That is among the many reasons why we want to put these words into the Bill.

Lord Dearing: I thank the Minister for his reply and I am delighted that there is no difference whatever in the House on the objectives. My only concern is that when the 720 pages of this Bill, its regulations and Explanatory Notes descend on a children's services director, he will remember that there is a Children Act 2004 as well. What do you do when 720 pages of legislation land on your desk? You have to get on with it. I worry that in getting on with this, the other legislation will be overlooked. Let us think about it.

Baroness Buscombe: I wish we could continue in that vein but fear that we will not. I shall speak to Amendments Nos. 12, 122 and 123.
	Amendment No. 12 would require local authorities to exercise their functions with a view to encouraging all schools to become self-governing and to acquire a trust. Amendment No. 123 would place this duty on local authorities and the Secretary of State. This builds directly on the wording of the White Paper which committed the Government to that at paragraph 2.5. It states:
	"At the heart of this new vision are Trust schools. Trusts will harness the external support and a success culture, bringing innovative and stronger leadership to the school, improving standards and extending choice. We will encourage all primary and secondary schools to be self-governing and to acquire a Trust".
	These amendments reflect the vision of the education system expressed by the Prime Minister and Ministers over the past few years. In his speech of 24 October, the day before publication of the White Paper, the Prime Minister said:
	"We need to see every local authority moving from provider to commissioner, so that the system acquires a local dynamism responsive to the needs of their communities and open to change and new forms of school provision.
	This will liberate local authorities from too often feeling the need to defend the status quo, so that instead they become the champions of innovation and diversity, and the partner of local parents in driving continuous improvement".
	This was not a new aspiration; indeed, it was the basis for DfES policy from as early as July 2004, when the Government published the five-year strategy for children and learners, which said:
	"Local Authorities should recast themselves as the commissioner and quality assurer of educational services, not the direct supplier, a role which enables them to promote the interests of parents and pupils far more confidently and powerfully than the old days of the Local Authority as direct manager of the local schools and colleges".
	It was repeated in the 2005 Labour manifesto, which said:
	"We want all secondary schools to be independent specialist schools".
	The policy came to full fruition in the White Paper, paragraph 9.3 of which states:
	"We will support local authorities in playing a new commissioning role in relation to a new school system, at the heart of their local communities, and responsive to the needs of parents and pupils. They will support new schools and new provision where there is a real demand or where existing provision is poor. This is a very different role from acting as a direct provider of school places. We recognise that in many ways it is more challenging. But it also offers the scope to ensure that communities receive the education they deserve and aspire to".
	One could argue that the drive towards the new strategic role of local authorities goes even further back than that. After all, the 1992 Labour manifesto stated:
	"We will reform the Conservatives' scheme for the local management of schools. All schools will be free to manage their day-to-day budgets, with local education authorities given a new strategic role".
	Clearly, the noble Lord, Lord Kinnock, now wishes that he had not made that commitment, but the present Government have taken it to its logical conclusion. The Prime Minister stated in the foreword to the White Paper:
	"Our aim is the creation of a system of independent, non-fee paying state schools".
	Our amendment would place this commitment into statute.
	We seek reassurances that the dilution of the proposals since the publication of the White Paper does not signal a desire by Government to abandon the trust school model and the independence that it brings. We feel that placing a target duty in legislation will ensure that decision makers bring about the creation of the system of independent, non-fee paying state schools to which the Prime Minister is committed.
	This is not to say that there have not been encouraging signs from the Government. We are particularly excited by the new role of the schools commissioner. The role of the schools commissioner is, according to the advertisement for that position to,
	"champion Trust schools within the context of the reforms set out in the Higher Standards, Better Schools for All White Paper".
	The candidate briefing pack for the role stated:
	"As the Schools Commissioner you will champion Trusts and Academies and advise the Secretary of State on the use of her powers".
	The pack also lists functions of the schools commissioner. These also point to a strong duty to encourage the development of trusts and academies. For instance, the schools commissioner will be expected to:
	"Champion Trust schools and Academies as key levers in raising standards, particularly in deprived areas...Identify suitable potential partners for Trusts and academies and facilitate the matching up of schools with partners and sponsors, particularly supporting schools in disadvantaged areas...Work with business foundations, educational charities, schools, local authorities and other partners to help identify the right solutions".
	Final-round interviews were supposed to take place at the end of June, so I would be interested to know when the appointment of the schools commissioner will be announced. The description of the role is extremely encouraging. However, we feel that the move towards the system of independent state schools would be strengthened all the more if we placed an explicit duty on local authorities and the Secretary if State to encourage its development. Such a duty would be perfectly complemented by our amendments on community schools, which we shall come on to later today.
	Finally, I would like to address the new clauses that I have tabled after Clause 32, Amendment No. 123. The first of these would define "self-governing school" and "Trust school". While the Department for Education and Skills refers to the proposed,
	"foundation school with a foundation",
	as a trust school, as evidenced by documents such as What Trust Schools Offer, the phrase does not appear once in primary legislation. I am sure that there are reasons for this. I suspect that it may have partly been due to a desire to downplay the radical nature of the schools by disguising it as an already existing category. But it is evident that the new trust schools are more than just foundation schools. As the Prime Minister said on 9 February:
	"Trust schools bring together the freedoms of foundations with the governance of voluntary-aided schools harnessing the investment of external partners we have already seen with specialist schools and academies".
	The radical difference between trust schools and foundation schools can also be seen from the models suggested by the Government; for example, the What Trust Schools Offer document gives the examples of a group of local schools working with a trust and a group of schools spread throughout the country working with a single trust.
	The potential for the development of national chains of schools run by business or charitable foundations is quite unlike anything that takes place at the moment. We feel that the proposed trust school deserves recognition in law beyond the description of,
	"foundation school with a foundation".
	Our amendment also states that,
	"A foundation, voluntary aided of foundation special school shall be known as a self-governing school".
	The distinction between community schools and self-governing schools is essential to the rationale for this Bill. The ability to govern themselves and set their own ethos is one of the main reasons why voluntary-aided and foundation schools flourish. We feel that placing the term "self-governing" into the Bill would demonstrate a stronger commitment to the vision of a system of independent state schools than at present exists. I beg to move.

Baroness Massey of Darwen: I seek clarification from the noble Baroness, Lady Buscombe, who seems to be very busy this evening and somewhat got at. I read again recently the Second Reading debate in your Lordships' House, and at least one member of the party opposite spoke about the concern for the expansion of faith schools. If, as the noble Baroness says, it is seeking for all schools to become foundation or independent schools, surely that will increase the number of faith schools. There is a precedent for this. Since the academy programme began, one in three of the new academies are controlled by religious interest groups and three of these replaced non-religious schools. Is it the policy of the party opposite to increase the number of faith schools?

Lord Lucas: I think that I was probably the Back-Bencher to which the noble Baroness referred. I am disappointed not to find an amendment from the noble Baroness, Lady Massey, or someone else on that side of the House, dealing with faith schools, although I may not have spotted it. I was looking forward to having a serious debate on that subject, and a couple of my amendments touch on it. Allowing faith schools is one thing, but allowing them to select pupils who are only of that faith is something very different. Faith schools are an extremely constructive concept, but when they are allowed to become ghettos and to separate pupils in one way or another from the rest of the surrounding community, they can be very destructive. I hope that we will have a chance to discuss that matter later.

Lord Skidelsky: I do not quite agree with the noble Baroness, Lady Buscombe, but the duties of LEAs in relation to encouraging diversity and choice need to be spelt out a bit more fully. The Bill imposes a duty to consider parental representations. Clause 40 says:
	"A local education authority in England shall provide advice and assistance to parents of children in the area of the authority".
	But parental preferences depend on having adequate information, and there seems to be an information deficit somewhere in this Bill.How are parents to know about the schools in their area? What information about the availability of education provision is to be supplied to them and by what means? Admittedly, they can go round schools and find out about them, but what are the duties of the local education authority to supply information to parents about the diversity of schools in their area—the results of schools and their educational philosophy—in order for them to exercise their choice? Perhaps I have missed it and it is there but, if it is not, I hope that the Minister will give some thought to creating that information mechanism. I have some ideas of my own on how that might be done, to which I shall refer later—but in the mean time, I shall be grateful for a reply.

Lord Lucas: I am as depressed as ever by the Liberal Democrat vision of a grey, uniform mediocrity among schools, with no opportunity for diversity or innovation—or the spark of difference. Therefore, I start from a position of rather favouring the Government's Bill as it stands, but I should be very interested in the reply that the noble Lord, Lord Adonis, will give.
	Some of the points made in Amendments Nos. 14 and 15 might be tackled better by amending Section 14 of the 1996 Act, because it addresses these issues, but they are not well addressed by these amendments. Section 14 has not led, by and large, to a great diversity in the curriculum provision between schools. In fact, there has been a general drift to uniformity and some of the more interesting diversifications have tended to be snuffed out. That is partly due to the pressure of the examination system that we have adopted, but there seems to be a general slow move in that direction.
	I would be delighted to see some greater duty on local education authorities, biting on Section 14 in some other way, to have a sharper attack on the curriculum diversity offered by their schools. The odd state school offers the IB, international baccalaureate, for instance. That should be enormously encouraged. Diversity does exist in the state system and I do not share the depression expressed by the noble Baroness, Lady Sharp, about our rural areas.
	My children were in the Winchester state school system, where there is considerable diversity of provision in terms of size of primary schools and the style of their management. When you go into Winchester itself, there is a school that is laid back, a school that is academic and a school that is disciplinarian. All of them do well and different schools have different strengths. What was noticeable about the Winchester system at the time that I used it was the obstruction by the local education authority of parents who wished to make any kind of choice other than the school that was allocated to them. You had no access to school transport over to the next school in Winchester. If you did not want to go to your allocated school, you had to drive the seven or eight miles in yourself—you could not take the bus seven miles in to your allocated school and then get a little "hopper" on to the next one half a mile away up the hill.
	The difficulties put by local education authorities in front of parents who wanted to exercise choice meant that it was fine for middle-class parents like me to exercise it easily, with perhaps some inconvenience, but a lot of people who were not so well off found that difficult. There is no such thing as a "good school" that is a good school for everyone. Yes, a school can be good, but different children thrive in different environments, with different curricula, with different attitudes to discipline, with different opportunities. No school can be perfect and wonderful at everything. Event the best schools that I spend my life looking at through the Good Schools Guide have many faults. Choosing the faults, attitude and style of the school is one of great reasons for offering choice to parents, particularly the parents of kids with any form of special educational needs.
	Although we might like to think that the provision in all state schools is wonderful and uniform, it is not. There are a lot of wonderful schools, but there are some real horrors. When you really care about a vulnerable child, you should give the parents a chance to make that sort of choice for their child, essentially by doing what this Bill will do—encouraging local authorities to make it more possible for parents to choose between what is there. Yes, if you live in the outer reaches of Cumbria, your choices are limited, but then you enjoy the beauties of Cumbria and you have to offset that against those limited choices. The basic principles that the Government are aiming for are entirely right and I very much hope that they will stand firm.

Lord Skidelsky: I am a bit puzzled as to why the noble Baroness, Lady Sharp, is so sceptical about choice and diversity in education. Presumably, she would accept that they are valuable in many other areas of life, and it is the way that the independent sector works. It is not that they are all different, but all schools have some variations and parents and children have the freedom to choose which sort of school they prefer. A catchment area really should be a laboratory of educational ideas and practices, and the Bill goes a little way towards making that so.
	I suspect that underlying the noble Baroness's attitude is the supreme value that she attaches to social cohesion. I agree that social cohesion is very important but it should not be at the expense of a good education for individual children. An education Bill is first and foremost about education and, inthat context, social cohesion is secondary. This amendment, and particularly Amendment No. 16, would give too much power to local authorities to object to new types of schools on the grounds that they damage social objectives.

Lord Lucas: Perhaps I can persuade the noble Baroness, Lady Sharp, and the Minister that the good work that they have done in Clause 1(1)(c),
	"promoting the fulfilment by every child concerned of his educational potential",
	which applies to Section 13 of the Education Act 1996, might usefully be extended to Section 14. The wording there is quite weak. It refers to,
	"such variety of instruction and training as may be desirable".
	If that were strengthened by the concept in subsection (1)(c) of new Section 13A, under Clause 1 of the Bill, that would be a considerable improvement in the direction in which the noble Baroness, Lady Sharp, is trying to take us in Amendment No. 15.

Baroness Sharp of Guildford: I thank the noble Lord for his suggestion. I do not have a copy of the 1996 Act to hand and so cannot look at it, but we will consider it and perhaps come back on Reportwith something of that ilk. I thank him for his interventions. I suspect that we shall go on throughout this Bill disagreeing with each other, but that is fine.
	I thank the Minister for his response and take on board his comments on further education colleges. I recognise that the Act applies to local education authorities, which I mentioned when I introduced the amendment. I said that I realised they were not directly under the responsibility of local education authorities, and implicitly, therefore, I recognised that technically the amendment was defective. However, I thought it was worth—indeed, it has been worth—throwing it in for discussion.
	I am sorry that the noble Lord, Lord Lucas, sees us as trying to impose a grey world. We are not against choice, but we believe that under the current system much parental choice is a total chimera and we do not think that that will change. The Government are offering the country a system similar to that existing in London. Parents have the whole of the Greater London area to choose from, which has created chaos. Around 55 per cent of parents and children get their first choice of school in Greater London, whereas outside Greater London it is closer to 90-95 per cent.
	I take on board the Minister's statistics, and was surprised that as many as 65 per cent of households have five or more secondary schools within a three-mile radius. I recognise that in a town such as Guildford, where I live, there are five secondary schools, and there is that choice. In some senses, my vision of the community working together is based on somewhere like Guildford, where, by and large, there is a lot of collaboration and co-operation, but where issues arise over parental choice. My party is concerned about curriculum choice and the range of such choice available to pupils. That is a key issue.
	I shall read carefully what various people have contributed to this debate, but for the moment I beg leave to withdraw the amendment.

Baroness Williams of Crosby: The amendment concerns social inclusion and community cohesion, which should be borne in mind in the decisions that affect the education provided in schools.
	I take the point that these are regarded by some Members of the Committee as of secondary concern. Let me, therefore, step back to the original concept behind the community school, which I still believe to be of great value in a society such as ours. We live in a society which is multiracial, multicultural and in many ways divided. The community school came out of a socially profoundly split society, and one in which four-fifths of children went to a secondary modern school and one-fifth went to a grammar school. The community school was invented and designed to overcome that profound social division, which in my view deprived a large proportion of our children of any opportunity to take their education further, or, indeed, to achieve their full educational potential. I believe it is still the case that in many quarters children do not have the opportunity even today to meet their full educational potential.
	My noble friend Lady Sharp spoke about her own strong belief in community schools. The Bill, as I understand it, goes beyond secondary schools and embraces primary schools as well. I find that a troubling development. The primary school was about educating a child to develop a sense of belonging to a community and the world of other children in that community. It was, and is, the concept of teaching children tolerance, inclusiveness and understanding. It is a very important part of what it is to be a young child.
	I shall start at that point. I am frightened—perhaps the Minister can reassure me—that the introduction of trust schools and other schools at the primary level will go a long way indeed to fragment our society, which is not so strongly cohesive that it can risk that kind of fragmentation.
	In secondary schools, the argument for some specialisation is strong, especially over the age of 14. However, many of us would want to see schools offering both vocational and academic courses, so that we begin to heal the ludicrous division between them, which has so distorted and deformed English education—though not Scots, Welsh or Northern Irish education in the same way. It is a rather specific feature of the English school.
	Taking the view that what matters more than anything else is parental opinion and parental choice, I find it so extraordinary that in the Bill, which has tried to bring together contradictory concepts in a desperate attempt to make a single entity out of them, there is no level playing field between the community school, the trust school, the foundation school and the academy. That is the central point.
	I shall not go on about this now because there are many later amendments, but throughout the Bill favours those schools that are alternative to the community school. It does so by providing them with much more money, by not obliging them to follow the national curriculum and by allowing them to go ahead without any form of ballot or parental preference being expressed. I find that objectionable. If someone wants to say that that comes back to social inclusion and community cohesion, I say that is an element in it, and that is why I waited to speak on this group of amendments rather than earlier. If there were a level playing field, parental choice would operate. It would operate between well-off parents and not well-off parents, southern parents and northern parents. But the Bill is not like that. It does not create that kind of basis of choice. One has to ask why.
	I do not accept, because it simply is not true, what the noble Lord, Lord Lucas, said, about grey uniformity. From the beginning secondary schools in this country have been amazingly diverse—not just individual schools with an ethos often created by their heads and teams of school teachers. That has always been true. All of us know that there are brilliantly good schools in every single category, and some very bad schools. That is as true—dare I say?—of private schools as it is of academies, community schools or any other group of schools you care to name. If people do not believe me they can read the conflicting reports on academies, for example, where some are said to be near failing and others are doing brilliantly. Go and read the reports of individual schools from Ofsted inspectors about community schools. Some are excellent; some are poor.
	There is a general problem, as was rightly said by my noble friend Lady Sharp, with inner-city schools. Incidentally, that is a problem anywhere you go in the world. None of us has been able to solve it satisfactorily so far. If the academies can solve it, that is wonderful. The jury is still out and there is no final verdict on the issue.
	We speak of the Bill as being about parental choice. As I have said, it could be, but it is not an open and fair choice at present. We speak of it being about improving standards. All of us want to see that, but we also want to try to ensure that standards are improved in the light of the need to maintain social inclusion. It is a very difficult set of requirements to combine. We would be less than honest with ourselves if we did not admit that there are real problems.
	I like Amendment No. 18, tabled by the noble Lord, Lord Dearing, because it puts the school right at the centre of the community and asks what it can do for that community. Parents are particularly hard pressed, overworked, overstressed and often have little opportunity to give careful thought to exactly which school their child will go to—because they do not have the time to learn enough about those schools—in exactly the areas he speaks about. Those parents are least able to exercise choice because their lifestyles make it difficult for them to do so. We all know that.
	For a while, I represented one of the poorer ends of Crosby, a very poor part of Liverpool, Seaforth and Waterloo. Parents constantly spoke of how difficult they found getting to parents meetings to discover exactly what was going on, and how scared they were of going to see the headmaster or headmistress to ask questions about their children. A great problem is that parents do not have equal power, articulacy or influence. Anyone serious about the education system must therefore see how that can be dealt with and compensated for.
	I approve of the Government setting up a system whereby people can advise on choice. But when all is said and done, if we are to raise the educational level of the children about whom many of us were speaking, there must be a general improvement in the educational system, not one specific to trust schools or particular academies. I refer to those children with special needs and to the 60 per cent in the middle, neither of whom have the financial advantage of being able to choose between every possible kind of school, and also to those are living in such cramped conditions that talking about parental choice is frankly a bad joke.
	That is why I am concerned about this Bill, and why we feel that there are contradictions at its very centre. I repeat: one of the great problems we will come to later in the Bill is that the parental choice playing field is in no sense level. I beg to move.

Lord Dearing: I speak to Amendment No. 18. It is a great pleasure to speak after the noble Baroness, Lady Williams.
	A major strand of the Government's thinking is diversity, choice and enabling parents to make choices in the best interests of their children's education on the basis of good information, which will lead to more children going to good schools. A second theme is the objective of making all schools into good schools: where a school is unsatisfactory or failing, to provide for decisive and swift action to remedy the faults which stand in the way of it being a good school. To some extent, a principal advantage of letting market forces work is to exert pressure on underperforming schools to lift their game.
	I shall argue a point brought out by the noble Baroness, Lady Williams. We must have some regard to a school within a community framework, particularly where the community is socially and economically disadvantaged. As schools increasingly become places for the extended school day—where there are recreational facilities for the community, increased participation and a focus for lifelong learning—I see them becoming valued and important centres of community life. That is especially true in poorer communities, where people do not go outside their community much. They can be housing deserts, with little to bring them together to develop a sense of community; estates where young rascals—if I may so describe them—get up to damaging mischief because they have nothing better to do and no sense of belonging or responsibility to the community. Amendment No. 18 may not be well worded, but we must take the needs of these communities into account.
	Another of the Government's themes is, rightly, parental involvement. The more you can involve a parent in a child's education, the better it is for the child. There is lots of evidence on that. However, if a child is moving into a comparatively middle-class area, can we see parents who are not well educated and who live in social disadvantage feeling articulate or confident enough to go to a parents' meeting and stand up and fight for their child and class interests in such an arena? I have my doubts.
	Some of these young people, particularly the boys, are not doing well at school. Because the school in their community has failed, they must move to a school in a better class area further away. It may be within two miles, but those are two miles in which they are more likely to truant and become a nuisance to themselves. They are possibly well into truancy already, but the more difficult it is to get access and keep a finger on them, the greater the risk. These are supporting arguments for caring for communities which have nothing much going for them.
	I argue that local authorities—and, in another amendment, admissions forums—should take the value of a school in a community like that into account. If it fails, they should replace it with a new school on the same site or in the community, to keep the community alive rather than educationally abandoning it. They should exert a moderating effect on death by attrition through loss of numbers while the process of regeneration and re-establishing a school takes place. It is the kind of consideration we can all understand. It is a question of how we can give effect to what I have in mind.

Lord Judd: I warm to the arguments put forward by the noble Lord, Lord Dearing. In my experience, they relate to the realities in too many of our deprived communities. I hope noble Lords will forgive me if I reflect for a moment that the first amendment I spoke to in this Committee was about putting the right of the child to education at the centre of the Bill. If the potential of our young is to be fulfilled, the ideal is to have teachers and the community pulling together. It is important for the school to be the focal point for the community. It should be a place in which parents feel at home and, ideally, a place in which they see things happening that are relevant to their fulfilment. I do not believe a school's activities should be limited to what goes on with the children in the classroom. There is potential for activities for parents as well, particularly if a lot of capital resources are put into a school.
	What worries me is when I think of communities in disadvantaged west Cumbria—the county in which I live—where dedicated teachers put everything into preparing a parents' evening and only two or three parents turn up. I referred to this at Second Reading. That is not the experience of many Members of the Committee. We operate in a different context. Therefore, when my noble friend Lord Gould says that we have moved on and that parents want the best possible education, I agree that that is true for a lot of parents. But I am concerned about children whose parents are so much at the bottom of the pile that they do not turn up to parents' evenings, who take no interest and have no aspirations for their children. That is wrong in terms of social equity and social justice, but it is short-sighted because it may deprive us of some super people who could make a great contribution to the future of our society. From that standpoint, we need to hear more from the Minister and his colleagues about their commitment and drive to get resources effectively into the most deprived and disadvantaged communities in our midst.
	In the end, politics is about priorities. Among my noble friends, I hardly dare use the old word because it will identify me as belonging to a previous age, but in my political philosophy socialism is about priorities. We have to make choices and the priority is getting resources to the most deprived. Without being cynical on this or being regarded as irresponsible, there is a some evidence that the brightest children will always look after themselves if they have a reasonable social background and the rest will do well one way or another. Of course we want to maximise that opportunity, and I do not take that extreme position. What really matters is the need to concentrate our attention on what we are doing to free children from the poverty trap. On the coast of Cumbria the situation continues from one generation to the next; it becomes institutionalised. That is the depressing feature. We need to hear more about this.
	I make another broader point that relates to the issue. I am a governor of the London School of Economics, and have been for a number of years. One of the things I enjoy most as a governor is that I am able to serve on the committee on access, which is about extending access to the school to a wider cross-section of students. Today I spent nearly three hours at a summer school for children from inner London schools. The committee is also about enabling children to get better opportunities in higher education, whether or not it be at the LSE.
	In the committee on access, one of the things that we worry about and can get terribly concentrated on is where we stand on the balance between the private and the public sectors of education. It is something to worry about at the LSE because we are very attractive to the private sector. We ask, "Are we getting enough people from the public sector?". But then we say, "Hang on a moment. When we look at our figures from the public sector, what are we talking about?Are we talking about advantaged middle-classpublic sector schools in advantaged middle-class communities, which might in all sorts of ways be schools in the private sector, or are we talking about how we really provide horizons for those trapped in something completely different?".
	I must say that today I came away from one of the liveliest sessions that I have encountered refreshed, challenged and cheered by what I experienced with these young people. I was looking at them and I could not help thinking that this question was very relevant because there is an element of self-selection, however we try. Some will get to that summer school, but the ones that perhaps should most be there will not. The issue always is what the Government can do to ensure that we keep the most deprived, the most disadvantaged and the most entrapped central to our vision, and how we are trying to assist them.

Baroness Scott of Needham Market: A couple of years ago, as a member of the board of the Audit Commission, I was part of a team that looked at work on choice in public services. The public survey showed that there was not unalloyed joy at the idea of choice in public services. Most respondents expressed concern about how they could make those choices, whether they would have the right information to make them. They were concerned that the choice agenda was a way of removing responsibility to provide good services and leaving it to people to make choices—in other words, shifting responsibility to the consumer to make the right choice rather than it being for the state to provide services.
	Respondents were very clear that they might take one set of views when they were shopping at Tesco or Sainsbury's but they did not want to make those sorts of choices on education or health. That said, these Benches feel that if one takes a market view of public services and if choice is to be a big issue, we want genuine choice in a free market. The skewing of the market proposed in this Bill is such that, if this were a private sector concern, the Office of Fair Trading would leap in almost immediately.
	I say to the noble Lord, Lord Gould, and the Minister that we do not want to take away from people the choice to remain with their local school if they want to. Please do not remove that by starving it of resources in order to spend those resources somewhere else. Let us have a genuinely level playing field.
	Further to the point made by the noble Lord, Lord Judd, we must accept that not all parents are either able or willing to exercise choice and to go though these processes in the same way. We must never see the situation where a child's future is decided by the aspiration of the parents and not by their own ability or their worth.

Lord Adonis: I stand between your Lordships and dinner, which is a slightly perilous position to be in. I have to overcome my temptation to be very brief, because the noble Baroness, Lady Williams, raised some important philosophical issues that require me to reply to them. I cannot let them pass, not least because my noble friend Lord Judd also raised the same issues in some ways and asked whether we were sufficiently committed to the principles of inclusion and investment in our most challenging communities. We are, and I should say a few words about that at the outset.
	My best way of replying to the noble Baroness is to say that I believe that she has two misconceptions about the Bill, which I shall describe, if I may. The first is understandable; it has been quite common in the debate, and was reflected in the comments of the noble Baroness, Lady Howarth. It confuses the legal category of core community school, which is simply a school with a certain set of governance arrangements about the precise composition of its governing body, about who does and does not own the assets, and about how admissions are and are not administered, with the concept of a school that plays a full part in its community and is absolutely inclusive and community-minded in the way in which it approaches its mission.
	I entirely accept that when secondary moderns and grammar schools were a normal part of the system it was argued—indeed, the noble Baroness sought as Secretary of State to promote policies to change this as we moved towards comprehensive schools—that whole categories of schools were not community-minded because their whole philosophy in interacting with their community and admitting pupils did not seek to embrace the community which they served, although I accept that the community which schools serve is to some extent a fluid definition. As the noble Lord, Lord Skidelsky, says, we do not have narrowly defined communities. However, and I cannot make this point sufficiently strongly, all the categories of schools in the Bill are absolutely community-minded in their mission. All the incentives on them are to be so. There is no distinction in that respect between schools that are called community schools and those that are called foundation schools, academies or trust schools. They all have to operate within the same framework of admissions and local duties, which they may perform better or worse in each case. The noble Baroness said that, and I fully accept that, but there is no particular reason why a school called a community school will simply, by virtue of its governance, be more likely to be better or worse in those respects than another school.
	All these schools have duties to promote community cohesion, and there is no inherent reason why one should perform better at that than the other. All of them have a duty to do so. The question is: which form of governance in the particular context of the school that we are talking about is most likely to produce a good school and do more to promote cohesion and the engagement of its community than any other? I took my noble friend Lord Smith, who as leader of a local authority has more experience of this than other noble Lord, to be saying that you sometimes have to be prepared to take really quite drastic action in the governance and leadership of a school. Such action might include a change in the school's legal category if you want to relaunch it in a way that will bring a completely new infusion of governing energy. Indeed, my belief is often that changing the category to one that gives much more of a sense of ownership of objectives on the part of the governors, which you are more likely to get in categories other than community schools, may be worth while. But that does not mean that any of these categories of school are less community-minded than others, or that they have any fewer of the duties towards special educational needs and disadvantaged pupils, to whom the noble Earl, Lord Listowel, referred and who are so dear to the heart of the noble Lord, Lord Dearing. I hope that I can establish that as a first point and invite the noble Baroness to reflect on it.
	The second point made by the noble Baroness, which I strongly refute, is the notion that the Bill somehow creates an unlevel playing field in the unfair distribution of resources between schools. I absolutely refute that notion. On revenue funding for schools, all schools, whether academies, voluntary-aided schools, community schools or trust schools, must be subject to the same fair funding arrangements that apply to other schools. Local authorities determine what their fair funding arrangements should be. They have to produce a formula that must respond to essential requirements that are laid down by central government, but those requirements give a weighting to such things as deprivation factors and ethnicity. Beyond that, the local authorities determine the fair funding formula. That formula then applies equally to all categories of school.
	In so far as central government intervene over and above that on the revenue support side, they do so to help to tackle disadvantage through programmes such as Excellence in Cities and the London Challenge, which cross my desk every day—allocations that we make that go overwhelmingly to schools in deprived areas that face challenging circumstances, often to support the kind of turnaround strategies to which my noble friend Lord Smith referred. The overwhelming majority of those schools are community schools, because that is where the largest category of schools is.
	On the capital side, however, the noble Baroness is right that certain priorities are set in the allocation of capital funding. Academies have been given priority in capital funding, not in revenue funding, because overwhelmingly they have been subject to failure, often acute failure, in the most deprived communities in the country. We think that it is right as a matter of policy for those schools to be able to get access at the front of the queue. They are almost overwhelmingly community schools—they become academies to give them a governance structure that is more likely to raise standards—and get that access to capital so that they can get the buildings that we want all schools to have in due course. Even in that respect, the overwhelming bulk of our capital programme in the next 10 years will go to a programme called "Building schools for the future". Our commitment to the renovation of the school system, particularly in deprived areas—my noble friend Lord Judd can preach this to the students at the London School of Economics—is without precedent in the history of Labour Governments. We are now spending £5 billion a year on capital renewal in our schools, compared with the £700 million we were spending as a country in 1997, and that figure will rise significantly further in the next few years.
	The criteria for allocation in the "Building schools for the future" programme, which is where the overwhelming bulk of the funding is going, are focused first on areas of greatest need, such as those in my noble friend's authority. Large numbers of very deprived areas are getting the allocation. The programme is in those areas prioritising the more deprived schools, the majority of which are community schools by legal category. I therefore completely refute the notion that there is an unlevel playing field in the allocation of public resources either in revenue funding or in capital funding. In capital funding, discretionary decisions have been taken, but all those decisions have been taken in favour of schools in the most deprived areas that face the greatest challenge so that they can become better community schools in the true meaning of community schools, which are schools that serve their community well and provide a high standard of education. I hope I have given the noble Baroness some things to reflect on and which go the heart of this debate in its widest sense.
	We do not believe that the specific elements in the amendments are necessary, because we believe that they are embedded in the duties in Clause 1 and in the legislation in any event. The key aims underpinning the Bill are to increase equality of opportunity and access to high standards of education for all. Clause 1 accordingly places explicit new duties on local authorities to ensure fair access to educational opportunity and to promote the fulfilment of every child's potential in addition to the existing duty to promote high standards. We want to ensure that every school provides an excellent education and that every child achieves their full potential, and nothing we can do will help schools better to promote social and community cohesion in their work than by succeeding in eliminating education inequalities based on class and background. We believe that we achieve that purpose in the Bill.
	Elements of discrimination, such as disability, race relations and the treatment of different ethnic groups, which might threaten cohesion, have not come up in the debate, although I understand the argument that we need to go beyond them. Schools, like other public institutions, are covered by statutory duties in that respect. They are also covered by the new disability legislation, which includes a requirement on all schools, whatever their category, to produce disability equality plans—a new legal requirement that will bite from this December. They are of course also subject to the Race Relations Act 1976 to eliminateunlawful discrimination and to promote equality of opportunity and good relations between persons of different ethnic groups.
	On the competition requirements in respect of completely new schools, we could not be more categoric. The regulations and statutory instruments that we have laid on the operation of school competitions to replace failing schools, which have closed in the sort of circumstances referred to by the noble Lord, Lord Dearing, state that those putting forward proposals for new schools, whatever the legal category of school, must provide:
	"(a) a description of what the proposals are intended to deliver in terms of community cohesion;
	(b) the objectives which the promoters intend to set to further the aims of inclusiveness and partnership working".
	In the draft statutory guidance for decision makers on competitions for new schools—also made available to Members of the Committee—Section 7 on community cohesion, inclusiveness and partnerships, sets out factors which should be taken into account, including, first,
	"the extent to which, and how satisfactorily in the circumstances of the community, the proposals [for new schools] address the need to promote community cohesion";
	secondly,
	"the extent to which the proposals take account of the needs of families and the wider community",
	and, in particular, satisfy the need for extended services identified in the authority's notice inviting proposals; and, thirdly,
	"the extent to which the proposals contribute to delivery of the Every Child Matters agenda, including the health, safety, enjoyment and achievement of children".
	That is in the guidance that we have put out. I do not believe that it could be more explicit in meeting the particular concerns raised by the noble Baroness and the noble Lord, Lord Dearing.
	On the basis that I may have helped to dispel some misapprehensions about the Bill and made clear that the commitments to community cohesion are there, I hope that it will not be necessary to pursue the amendments.

Baroness Anelay of St Johns: My Lords, I thank the Minister for her explanation of the order. As my honourable friend Nick Herbert made clear in another place when this matter was debated last week, we do not wish to rehearse again the debate about whether detaining terrorist suspects without charge for 90 days was justified. Parliament agreed on the28 days. It is very clear that the subject matter of this order is very narrowly confined to whether Code H is appropriate to be put into effect. We certainly support the making of the order on that basis.
	In another place, my honourable friend Mr Herbert asked two questions, one of which was satisfactorily answered. He was assured by the Minister, Mr McNulty, that it was envisaged that if the police need to interview detainees after they have been transferred to prison, arrangements will be made for them to be moved back to the appropriate police station. That was a welcome assurance, since it is in keeping with the needs of an investigation.
	However, my honourable friend also pointed out that the code provides that detainees may receive visits from friends, family or others at the custody officer's discretion. He therefore asked to what extent that provision would be subject to supervision or review, whether such visits would be left to the discretion of a single custody officer and what appeal procedure would be available if the custody officer decided not to allow the visits? In glancing through the report of that debate on 28 June, I did not readily see that Mr McNulty had responded. I should be grateful if the Minister could take the opportunity to do so today.

Lord Avebury: My Lords, we understand that the revised codes of practice made under Section 66 of the Police and Criminal Evidence Act 1984 are necessary because of the extension of the maximum period of detention from 14 to 28 days, to which Parliament finally agreed with some reluctance after many contentious debates.
	As the Minister said, Code H deals in particular with the treatment of suspects who are detained for the longer period under the Terrorism Act 2000. I understand that after consultation it was agreed that suspects would be transferred to prison if a warrant is issued taking detention beyond 14 days. My noble friend Lord Carlile of Berriew strongly endorsesthat proposal as ensuring that detainees are held in establishments which have the experience and facilities to deal with longer periods of detention.
	When my honourable friends the Members for Hornsey and Wood Green, and for Somerton and Frome, asked whether someone held under the code would be transferred to a place where the officers had received appropriate training, the Minister who replied took the question to refer only to police stations. He said that the equivalent of Paddington Green would not be needed everywhere unless there was a large increase in suspects charged under the code. Does that mean that as long as the number of suspects is small enough to be accommodated in Paddington Green, every suspect will be held there initially, regardless of where they were detained in England and Wales? What is the situation in Scotland? If the number of suspects increased beyond the limit that Paddington Green can hold, has another police station been prepared to receive the extra suspects, with appropriately trained officers?
	Similarly, are there designated prisons ready to receive the suspects who are detained for 28 days, with appropriate facilities and trained officers? If the first preference is to be Belmarsh, has another prison been designated as backup in case the numbers exceed the capacity of Belmarsh? I need hardly add that with the prison system as a whole crammed to bursting point, it would impose an intolerable strain on the service if it suddenly had to accept more than a few 28-day detainees. It would be useful to know how the Minister thinks that it would deal with such an emergency if it occurred.
	Finally, I should like to ask a question, of which I am afraid I did not give the noble Baroness notice, on paragraph 5.7 of Code H. It provides that detainees will be,
	"informed that what they say in any letter, call or message...may be read or listened to and may be given in evidence".
	There is no reference to the recording of any telephone call that is made. Particularly as reference is made elsewhere in the code to the possibility that telephone calls may be conducted in a language which the officer does not understand, does the Minister not consider that there may be a requirement to record those conversations so that they can be translated and examined later?

Baroness Scotland of Asthal: My Lords, first I thank the noble Baroness and the noble Lord for giving their assent to the codes of practice, but I shall answer straightaway the questions that they have quite properly asked.
	On the supervision of family visits and any appeal procedure, I can assure the noble Baroness that all visits will have to take account of the operational sensitivities of an investigation and will be arranged in liaison with the investigation team, while also taking into account the needs of the detainee. The balancing exercise will have to be gone through, and of course the noble Baroness will understand that each situation will be different. Any complaints, however, can be made to the independent Police Complaints Commission or to the Prisons and Probation Ombudsman, depending on where the detainee is held.
	I turn now to the questions raised by the noble Lord, Lord Avebury. All police stations are designated for the detention of terrorist suspects, but the Terrorism Act 2000 requires that a detainee is taken as soon as is reasonably practical to the police station which the constable considers the most appropriate. In the majority of cases this will mean Paddington Green, but other police stations are used and a secure detention facility exists in Scotland at Govan. The decision about which station is the most appropriate is an operational one to be taken by the police and will depend on the needs of the investigation and the circumstances of the detainee.
	The noble Lord asked whether suspects would all be sent to Belmarsh and what the position there is. The police and the National Offender Management Service will maintain an agreement as to the most suitable places for detention, which will again depend on the individual detainee and take into account, for example, their age, whether they are male or female and the circumstances of the investigation. Belmarsh will be one of the institutions under consideration for appropriate cases but other institutions will be considered when all the relevant issues are taken into account. Those will form part of the plans we make.
	On the question of telephone calls, I shall write to the noble Lord. However, the ordinary principleof "he who asserts must prove" will prevail. If information is to be relied on, it makes prudent good sense to try to get the best quality evidence. That is my response generally but I shall write to him in relation to that specific issue because I do not have clear instructions to hand. With that, I commend the order to the House.

Lord Lucas: The crucial amendment is not in this group, which is Amendment No. 179 tabled by the noble Lord, Lord Dearing. Without it, there is no hope of my noble friend's amendments, particularly Amendments Nos. 17 and 84, working. There is such disparity in the behaviour of local education authorities when it comes to statementing and inclusion.
	By and large, kids are the same across the nation. There is a relationship between deprivation and special needs. Special needs are about 50 per cent more common in highly deprived areas, as opposed to basically middle-class areas, but the difference in statementing levels is 7:1 between the keenest authority and the most reluctant. That is just down to strange educational theories and particular fixations of individuals in local education authorities on what should be. In addition, to bring it back to the point of the amendment tabled by the noble Lord, Lord Dearing, it is down to the financial pressures on local authorities to try to control this, and to the temptations which many have given into to try to crunch special needs spending to stay within budget.
	The good behaviour and bad behaviour is not a matter of political argument. It is extraordinary how it has spread. One of the best councils in terms of parental response to SEN problems is Islington, which does not have a school that I would ever recommend to anybody if they had a choice. Neighbouring Camden, which has a lot of good schools, is one of the worst authorities. It is not something that goes with the flow; it is the individual character of local authorities.
	The way in which inclusion for SEN is handled, and the way in which children are given the designation of school action, or school action plus, varies enormously from authority to authority without any clear pattern. Again, we come back to the underlying inconsistency because we are dealing with conditions that should not differ from one local authority to another. The basic diagnosis or recipe for what should be done should be fairly constant. Without that constancy, I find it hard to know how Amendment No. 17 will operate. How can you tell what is a sufficient number of special schools when one authority will say that it is one, and the next will say, "No, you need seven"? We must get back to a rational system and away from the distortions present in the current one.
	Given that, I very much applaud what my noble friend is aiming at, which is that the supply of schools should be in response to the real needs and concerns of the children involved and parental preferences. It should not be guided by some theoretical prejudice in the hearts of somebody in the local education authority.
	One of the great difficulties, as others have pointed out, is the current state of inclusion. Inclusion is a wonderful thing when it works well, and in many schools it works brilliantly. But there is a collection of schools where being a special needs kid is a real disaster. Again, that varies from one local education authority to another.
	If we look at kids who do not have SEN in primary schools, about 7 per cent of them score really badly on value added. When they come to take their key stage 2 they are way below where you would expect. For SEN kids, the figure is 22 per cent. Generally SEN kids on primary school value added do much worse than non-SEN kids. That should not be the case. The value-added measure should be pretty equivalent from one to the other, but it seems to be way worse. When you look at local education authorities, that disparity disappears with some of them. The best in the country is Windsor and Maidenhead, where SEN kids and kids without SEN do just as well as each other. The worst is Slough. The River Thames separates the two. There are no terrible differences in deprivation or any other indices which would suggest why the two are so different. But Windsor and Maidenhead has a wonderfully integrated, active LEA that really supports schools, gets involved in making sure that teachers are trained—coming on to the amendment of the noble Baroness, Lady Sharp—and that there is real activity in making sure that SEN is understood and supported. Slough clearly does not.
	A great deal needs to be done—coming on to the last amendment in this group—to make sure that teachers are trained. That seems to me to be the sort of function which LEAs, as envisaged by us and the Government, should really be undertaking and major in. There are immense disparities here, which need to be sorted out. Certainly, as regards the sort of function a school improvement partner should perform, one thing they should being doing is spreading good practice. Again, that is one reason why I do not want these people to be confined within one LEA. I want them to be nominated by the Government and then chosen more widely than that. If you have bad practice in an LEA, you will not learn by just circulating within that LEA. Getting out to see how they do it in neighbouring counties is going to be an important experience for a school improvement partner.
	I very much support the amendments, but they are at the periphery of what needs to be done.

Lord Adonis: I find myself in a slightly uncomfortable position in responding to points about the Select Committee report in another place, because I have seen it. An embargoed copy came to me today, but it not published until tomorrow. I fear that a debate will ensue.

Lord Adonis: The noble Lord is generous. I understand that we have an agreement to carry on until half past ten, but not to one minute past midnight. If noble Lords take a different view, I am happy to stay here longer and give the core response. Indeed, I think I am giving the response on the "Today" programme at seven o'clock in the morning, so I could rehearse it with your Lordships before I have to deliver it to a rather larger audience. I say to the noble Lord, Lord Dearing, that we intend, as is our duty, to give serious consideration to the report. We will respond once we have done so. Some significant issues are raised.
	On the specific amendments, we agree with the underlying principle of Amendments Nos. 17 and 84, moved by the noble Baroness, Lady Buscombe, that there should be a sufficient range of good quality provision available for children with special educational needs and disabilities to provide a choice for parents of children with SEN statements. Such provision should include sufficient provision of special schools and resourced special needs provision within and attached to special schools. Local authorities can arrange admission to non-maintained special schools and independent schools for children with statements where that is necessary, and can also collaborate to ensure that a range of provision is available.
	The report to which my noble friend Lady Massey referred—the audit of low-incidence special educational needs—which was completed two months ago, refers in particular to the importance of collaboration between local authorities on a regional basis, especially small unitary local authorities that may not be able to make provision in all the key specialisms that are important to ensure that they have a sufficient range of provision. However, we believe it is for local authorities to take decisions about the range of provision they maintain. From my experience of local authorities, I like to think that they are not motivated in what I took the noble Lord, Lord Lucas, to think are almost perverse ways. That is not to say that there are not individuals in local authorities who have views that are not mainstream thinking in these areas, but local authorities have to take democratically accountable decisions in a proper fashion and I believe that most of them take their duties in this area immensely seriously and consider them properly.
	The Bill will help local authorities develop a range of provision. It gives powers to local authorities so that they can propose specific requirements for special needs provision in new and existing schools within a school system that offers broader choice and more flexibility. Almost all local authorities already maintain special schools. For example, Newham, which is often referred to as one of the most pro-inclusive local authorities, maintains two community special schools. Under this amendment, Newham could have regard to the need to provide sufficient special schools and decide that two is enough. Rutland local education authority maintains a community special nursery school, but under Amendment No. 17 it would have to open up a primary and secondary special school. It would be a matter for debate how many special schools would have to open before the authority had a sufficient number to serve its very small population.
	In practice, we think that these decisions are best left to individual local authorities, and that the caricature that is often made of local authorities is quite unfair. I know Newham well because it was an issue raised by the Education and Skills Committee when I appeared before it to give evidence. If one looks at what is happening there, it is very different from the caricature that often appears in the media. Not only does it have two special schools, although it is often claimed it has none, but it has a great deal of resourced provision—unit-type provision—attached to its schools. If one looks at the population of pupils with special educational needs who have specially resourced provision, one of the areas that is most neglected is the provision of units and resourced provision in mainstream schools, which is now a substantial part of the whole. There are about 80,000 children in special schools and 20,000 children in units attached to mainstream schools or in resourced provision in schools, and that number is rising. My view is that that type of provision is likely to increase over time, because it enables mainstream schools to perform their inclusive duties in respect of pupils with special educational needs much better, and to bring resourced provision, which is essential for those with more severe special needs, into a much closer relationship with mainstream schools. That will be part of the ongoing debate about how we can improve special educational needs.
	Section 14 of the Education Act 1996, which this amendment would affect, fulfils the public policy goal we are seeking to achieve. It applies to all schools, including special schools, and places a duty on local authorities to secure sufficient schools for the provision of primary and secondary education. Section 14(6) states that in exercising their functions to secure sufficient primary and secondary education, local authorities must have regard to,
	"the need for securing that special educational provision is made for pupils who have special educational needs".
	Those pupils will include children with statements who have needs which require specialist provision to be met, either in special schools or in units attached to mainstream schools.
	In response to the noble Baroness, I emphasise what my noble friend Lady Crawley said: the Government have no policy whatever of seeking to close special schools. We believe that such decisions should be taken in the light of local circumstances and the needs of the parents at a local level. In fact, the proportion of pupils with statements in special schools has risen over the past five years, which demonstrates that there is no national policy of seeking to close special schools. There has also been a growth in the population of SEN pupils in units and other resourced provision attached to mainstream schools.
	Turning to Amendments Nos. 36, 163 and 183, which seek to ensure that those undertaking certain roles have an understanding of SEN and disability legislation, I shall first set out the way in which school improvement partners are accredited and the nature of the SIP role in relation to children with special educational needs. The initial training, development, assessment and accreditation of school improvement partners is undertaken by the National College for School Leadership. This is a non-departmental public body of the Department for Education and Skills, working to a remit set by the Government. Included in its key objectives up to 2008 is a commitment to deliver a range of programmes that enable leaders of the school system to transform the quality of learning for all pupils. It is certainly not the role of SIPs just to focus on the academic achievement of the successful.
	The training and accreditation of SIPs focuses on data analyses of the performance of groups of pupils in schools—in particular, in identifying inequitable outcomes that might be occurring in the school, the factors which contribute to them, and the action the school should take. This is supplemented by detailed guidance on how the SIP should focus with theschool on issues that might affect vulnerable or disadvantaged groups of pupils. This guidance is in the public domain and I will send it to Members of the Committee after the debate.
	The guidance includes advice SIPs should consider about special educational needs, and how they should address barriers to learning and to issues regarding behavioural and emotional difficulties. They should consider whether systems can be used to design appropriate curriculum and pastoral support, monitor success and respond to changing needs, and focus on whether there are effective links with other support agencies to ensure that integrated support structures are in place for pupils with additional needs.
	The training and development of SIPs doesnot stop with the initial session provided for accreditation. SIPs take part in four days of professional development a year, provided in part by the national strategies and in part by local authorities deploying SIPs.
	School self-evaluation is a key starting point for the school improvement partner in the process of offering challenge and support to the school. There are special educational needs sections in the school self-evaluation form. The SEN evaluation framework will form part of the continuing professional development for SIPs. In carrying out their duties, school improvement partners will, of course, have to be aware of all the statutory duties that schools have. In the area of special educational needs and disabilities, schools must have regard to the special educational needs code of practice and use their best endeavours to make the provision that a child's learning difficulties call for. Under the Disability Discrimination Act schools must not discriminate against children with disabilities, and must make reasonable adjustments to prevent such discrimination. From December this year, schoolswill also be under a duty to promote equality of opportunity between disabled and non-disabled children.
	I turn to Amendment No. 163 on choice advice, tabled by the noble Baroness, Lady Buscombe. Clause 40 will ensure that local authorities provide advice to parents to help them make decisions about the choice of school for their child. Some parents find it difficult to navigate through the admissions process. That means that some children, often the most vulnerable, do not get the best from the choices available to them.
	The department's guidance to local authorities on the provision of this advice to parents, issued at the start of April, covers the specific issues raised in the amendment, stating that advisers will need to know about special needs policy and provision for children with special educational needs, drawing on the knowledge and expertise of local parent partnership services, which I know has been welcomed. We will update the guidance to ensure that choice advisers can demonstrate, in addition to knowledge of SEN law and best practice, an understanding of disability legislation.
	Amendment No. 183 on professional standards for teachers was tabled by the noble Baroness, Lady Walmsley. The new clause relates to professional standards. It is of course very important that teachers are properly prepared for working with children with special educational needs and disabilities. There is no issue of law here. The Secretary of State and the National Assembly for Wales already have the power to set professional standards for teachers, and currently do so in secondary legislation and associated guidance. As the noble Baroness recognised, we are currently revising those standards and working closely with the teacher training and development agency on seeking to improve them.
	There is no need to set out specific standards in primary legislation, which by its nature is inflexible and does not easily allow for changes to reflect developing awareness and importance of such issues. Revised standards for qualified teacher status, induction, threshold, excellent and advanced skills teachers were, as I said, recently issued for consultation in England. They offer for the first time a progressive framework for expectations of teachers at different points in their careers.
	Once revised, it is proposed that the new standards will include one which requires teachers to know and comply with current legislation on the well-being of children and young people, one that requires teachers to know and understand the role of others when dealing with children who have special educational needs and/or disabilities, and one that requires teachers to communicate effectively with parents and carers. Taken together, those requirements will be stronger than the requirement in the amendment to demonstrate an understanding of SEN and disability legislation.
	We are also working with the TDA to strengthen the training that teachers receive in SEN and disability, which we recognise is an ongoing challenge to improve. We have commissioned the agency to take forward a £1.1 million programme of practical measures aimed at strengthening delivery for teachers in initial teacher training, those undergoing induction, and enhancing continuous professional development opportunities for those already in post.
	The SEN and disability populations overlap, but we recognise that they also raise separate issues.My department is developing an ambitious new training resource on implementing the Disability Discrimination Act in schools and early years settings, which will be made available to teacher training providers.
	Amendment No. 183 also refers to head teachers. The National College for School Leadership addresses issues relating to special needs and disability through its various programmes and activities, including special focus events. In accord with the NCSL's declared goal of ensuring the well-being and achievement of all children, the National Professional Qualification for Headteachers is currently being redesigned and will equip future school leaders to fulfil their responsibilities for the education of children with a variety of special educational needs and disabilities in a range of different contexts.
	In light of those assurances, I hope that the Committee will feel that the Government are alive to the issues being raised. We have further to go; we will respond in full to the report of the Select Committee in another place; but we are making progress.

Lord Dearing: I shall speak to AmendmentNo. 127. I was prompted to table this amendment because it seemed to me that if parents were going to be consulted about a proposal for a trust school, it made sense to consult in some way the pupils of that school, especially in secondary schools.
	I think there is a general principle here. The pupils are the people most directly affected by decisions taken about their school, and in some important respects they will know more. They will have a more intimate knowledge of the school than their parents. It seems right that they should have a right to have their views taken into account by a governing body, or whatever.
	In this amendment I have made a proposal that, where possible, the consultation—where there is one—should be through the school council. I sought to find out to what extent school councils were already in existence, and I read that whereas in 1998 some 65 per cent of secondary schools and 15 per cent of primary schools had a school council, it is estimated that the proportions have now risen to 80 to 85 per cent for secondary schools and 75 per cent for primary schools. Such councils seem to be a suitable vehicle for consultation.
	I am aware that the noble Baroness, Lady Walmsley, is proposing that all the pupils should be consulted on disciplinary matters. I have not gone quite as far as that; sometimes there is a rather large number of them. I was thinking of an alternative. Perhaps alongside school councils—and I am pushing the boat out now—there should be a class council. I believe that young people have good sense, especially as regards disciplinary matters and a disciplinary policy. If a council comprising of members of a class sat down with a teacher to talk the matter through, they would be persuasive and effective advocates of an effective disciplinary policy. I believe that a disciplinary policy has to be owned by everybody in the school, otherwise it will not work.
	Amendment No. 127 would ensure that, where the legislation provides for consultation with parents, there should be suitable provision for consultation with pupils—for example, in school councils.

Lord Adonis: At this late hour, I am in the happy position of being able to fulfil some of the dreams of the noble Baroness, Lady Walmsley. We have given a lot of consideration to the matter, and we think that we can move part of the way that she described.
	Amendment No. 217 would amend Clause 81, which concerns consulting a sample of pupils on a school behaviour policy. Our view, having considered this also in the light of the ongoing discussions that there have been on the Childcare Bill, is that we can move further. We agree with the point that a discipline policy is central to a well functioning school, and the maximum possible engagement of the pupils in that process is important. I emphasise the word "consult". It is not a requirement for them to make a decision; I completely agree with the noble Baroness, Lady Buscombe, that you do not want to put young people in the position of becoming the decision makers. To consult all the pupils is not in principle an over-burdensome requirement. They do not have to respond to the consultation; noble Lords are asked to participate in many consultations on which they do not give their views.
	Having listened to what the noble Baroness said and having reflected on it previously, without giving an absolutely firm commitment—we need to look at it further—we are minded to table a similar government amendment on Report that would simply remove the sample requirement and have a general requirement to consult. I cannot give an absolute assurance, but we think that that is likely to be an appropriate policy.
	I am in the even happier position of being able to respond positively to Amendment No. 253, in the name of my noble friend Lady Turner, who is not even here. I hope that, when she wakes up in the morning and reads Hansard, this might please her. The Government unreservedly agree with the second part of the amendment, which aims to remove the current exemption of nursery-age children from the consultation duties on schools and local authorities under Section 176 of the Education Act 2002.The amendment in this respect reflects what the Government have already provided for in the Childcare Bill through the amendment that the noble Baroness, Lady Walmsley, referred to. Therefore, we will consider tabling an amendment on Report that brings children of nursery age on to the same footing in terms of consultation requirements, irrespective of the setting in which they may find themselves. I will be glad to tell my noble friend that I have been so persuaded by her arguments that we have decided to move in this respect.
	The first part of Amendment No. 253 proposes duties on schools to consult pupils. Section 176 of the Children Act 2002 already provides for the consultation of pupils on issues affecting them. The section provides for statutory guidance to which local authorities and governing bodies must have regard about the consultation of pupils in connection with the taking of decisions affecting them. We are encouraging schools to put the 2004 guidance issued under Section 176 into practice in ways that are meaningful to children and young people. One prime means of giving effect to that guidance is the establishment of school councils. I am a great believer in the role of school councils; it is one of the areas that I have been most impressed by in terms of changes in the education system over recent years. When I and many other noble Lords were at school, the idea of any form of consultation with pupils was regarded as a somewhat outrageous act of lèse-majesté. Now, it is common not only in secondary schools but, increasingly, in primary schools.
	I had the privilege recently to launch School Councils UK, which is an excellent organisation providing training materials for the establishment of school councils in primary schools. I launched those materials in a primary school in Hackney that has an outstanding school council in a very challenging area. It takes a real sense of responsibility and leadership for developing the behaviour policy in the school, tackling bullying and helping to improve the school in a number of ways. We are looking to see how we can take that forward, although it does not require statutory duties in the Bill.
	We have taken two substantive steps. I have asked Professor Geoff Whitty, the director of the Institute of Education at the University of London, to examine the experience of the operation of school councils and to report to the Secretary of State, which he will do later this year. We have indicated that we will consider his report with a view to updating the guidance under Section 176 of the 2002 Act to provide stronger advice to schools and more best practice guidance on how they can establish school councils and involve them meaningfully in the work of schools. My noble friend Lady Massey also referred to the important work of school councils in primary schools, and it has become increasingly widely understood that they can play that role.
	I hope that the noble Lord, Lord Dearing, will accept that, given our bona fides, which, I think, is clear, we do not need to put new statutory duties in the Bill and that the work is proceeding in any event. I encourage the noble Lord and other noble Lords who have experience and views in this area to speak to Professor Whitty. I will draw his attention to the debate that we have had this evening. He is taking this work very seriously, and in terms of pupil engagement in the life of schools and in the taking of decisions affecting them this could turn out to be path-breaking.
	Amendment No. 52, in the name of the noble Baroness, Lady Walmsley, in respect of youth, would clarify the process by which authorities should consult young people about positive leisure-time activities. The new duty in Clause 6 includes a requirement for local authorities to consult young people about the provision of facilities in their area, the need for further provision and any access issues. The duty focuses on securing access to activities. Therefore, to fulfil the duty, authorities will need to focus their attention on the groups of young people who face the greatest barriers to participation in their area, and the consultation offers a powerful means to assess the nature and extent of those barriers.
	We, therefore, do not expect local authorities to consult every young person in the area, but equally we expect that any sampling will be robust enough to capture the views and needs of young people belonging to those high-risk groups. That is not the same as a representative sample, which, for example in an area where the majority of the population were from the same socio-economic or ethnic group, could mask the views of a minority facing disproportionately challenging barriers to participation and which a local authority may with to consult specifically on the provision of these activities.
	Therefore, the legislation needs to offer authorities some flexibility in order to target their consultation in the most effective way in terms of the types of services that they believe they may need to provide in an area; and that a requirement to consult a representative sample would reduce the ability of authorities to undertake this and, in turn, reduce the effectiveness of the duty for the young people whom we most want to help.
	Amendment No. 20, in the name of the noble Baroness, Lady Walmsley, seeks to ensure that, in carrying out their new duties under Clause 3 to respond to parental representations, local authorities should in certain cases ensure that the views of a particular child are taken into account. We entirely sympathise with the spirit of the amendment, but it goes beyond the scope of the clause. The duty in Clause 3 does not apply to complaints or representations in respect of individual pupils who might, therefore, have a right to be consulted individually but to how a local authority discharges its general duty under Section 14 of the Education Act 1996 to secure sufficient schools for providing primary and secondary education in their area and the new duties added by Clause 2 of this Bill to secure diversity and increase opportunities for parental choice in the provision of schools.
	The duty to consider and respond to parental representations, does not apply to complaints or representations about the access to education or quality of education provided to an individual child, where the existing arrangements for making complaints remain in place. The draft illustrative guidance on parental representations that we have made available reinforces that point. It states that such representations might cover, for example, a request for a new school with a particular ethos, or a general complaint about the quality of provisionin schools in the area, but such representationswould not concern individual circumstances or the education of an individual child.
	The existing references to a "qualifying child" in Clause 3 are simply to specify that the duty to respond is triggered only if the representation is made by a parent who has a child in the local authority's area who is of or under compulsory school age. It does not mean that representations should specifically be in respect of the education of a particular child. I hope that I have clarified the issue and that the noble Baroness will be satisfied with that position.

Baroness Buscombe: I shall speak also to Amendment No. 67. Amendment No. 21 would ensure that, where a local authority received representations from parents requesting the publication of a notice inviting proposals from outside the local authority for a new school and then decided not to publish the notice, it would have to state why it was doing so.
	This is, in part, a probing amendment but, were it to be accepted, which I believe it could be, it would not intrude on a local authority's right to not publish a notice. However, it would ensure that parents were entitled to an explanation when their proposals were not considered or published.
	The amendment would add no huge burden to local authorities; rather, it would ensure transparency in the decision-making process. Where a parent's proposal had been refused, surely the local authority would have logged a reason for that decision as a matter of course. I am sure that the Minister will recall the text of the regulatory impact assessment, which states that some authorities,
	"tend to regard community schools as 'their' schools and to regard other categories of schools as being outside the local family of schools".
	It is my view that no school is greater than the sum of its parts: the pupils, parents and teachers. A clear priority set out in the White Paper is the voice of the parent. A whole chapter is dedicated to parents driving improvement. The amendment would ensure that no parents' views could be ignored or not acted on in any way.
	Amendment No. 67 would enable the Secretary of State to prescribe minimum conditions for the schools in the area of a local authority. Where the authority failed to meet those minimum standards, it would be forced to publish an invitation for proposals for the establishment of a new foundation, voluntary or foundation special school. Such conditions could include a minimum proportion of self-governing schools or refer to purely academic considerations.
	It is very important that failing local authorities take decisive action to remedy that. When large numbers of schools are failing in an area, it is essential that new providers are allowed to come into the system, bringing with them a different ethos, and in so doing, driving the improvement in school standards. Too many schools currently under-perform. The National Audit Office has found that as of July 2005 there were 1,557 poorly performing schools in England, representing 4 per cent of the primary schools and 23 per cent of secondary schools. That is far too high. These schools educate 980,000 pupils, or 13 per cent of the school population. Of schools in special measures, less than 10 per cent recover within 12 months.
	Individual cases point to local authorities with unacceptably low levels of performance. Take Knowsley, the authority which has the worst value added school, and where only 25.5 per cent of pupils achieve five or more good GCSEs, including English and mathematics. In 20 local authorities fewer than one-third achieve this level. Consider also Nottingham city, where more than one-quarter of pupils fail to achieve even five or more GCSEs at A* to G when English and maths are included.
	We on these Benches cannot be alone in thinking that when local authorities languish at the bottom of performance tables they should take decisive action to tackle this. I seem to recall the noble Lord, Lord Dearing, saying earlier that that is the case. One should not allow these schools to languish for too long.
	It would be inappropriate for local authoritiesto establish new community schools in such circumstances, as they have demonstrated their unfitness for the challenge. The amendment would ensure that local authorities are truly the proactive commissioners of successful education rather than allowing them the possibility to be the passive providers of coasting schools. I beg to move.

Lord Adonis: We have considerable sympathy with the intentions behind Amendment No. 21, moved by the noble Baroness, Lady Buscombe, in respect of the requirement to provide a proper statement of reasons in response to a request submitted by parents. But we think that it would be excessively prescriptive to set out this requirement on the face of the Bill.
	Let me explain what we are doing in this regard. Clause 3 is the expression in the Bill of the commitment set out in the White Paper to give parents the right to ask for a new primary or secondary school. It places an explicit duty on local authorities for the first time to respond formally to parents who are seeking changes to the provision of schools in their areas, including new schools. We are determined that this duty should give parents the right to be heard by their local authority on the provision of schools in their area and to receive a considered and proportionate response.
	The draft illustrative guidance to local authorities, which we have made available, makes it clear that this is a duty which they must take seriously. They will need to respond on a case-by-case basis, after evaluating the depth and quality of support from parents cited in the proposals, gauging the level of parental concern more generally, and analysing patterns of demand in the area. That would include the issues raised by the noble Baroness in terms of the failure of existing provision in the area.
	More specifically, the guidance stipulates that the local authority should respond to the original representations by means of a statement, and I hope that the noble Baroness will be reassured to note that the draft guidance specifies that. It states:
	"In all cases, the statement would need to set out the local authority's justification for arriving at its conclusions in order that the parents or parent group can follow the reasoning involved and, if dissatisfied, complain citing the reasons given".
	That is a categoric statement of the requirements that we are placing on local authorities.
	Indeed, if parents believe that their local authority has not taken proper account of its duties, they may complain to the Secretary of State, who would consider whether to intervene—for example, by directing the local authority to reconsider its decision. Parents would also be able to make representations to the Schools Commissioner, who might also play a role in the process.
	We believe that statutory guidance is the most appropriate and proportionate way of setting out detailed expectations of how local authorities should respond to parental representations. While there may indeed be representations from parents specifically requesting a competition for a new school, which was the case raised by the noble Baroness, not all representations will be that specific. We should not, therefore, single out that specific possibility in the Bill.
	Similarly, while a competition for a new school might be one outcome of a parental representation, there may equally—quite legitimately—be circumstances where the local authority will judge that the best response might be, for example, to propose the enlargement of an existing successful school, or other changes to existing provision which meet parents' demands in other ways. In all cases, however, local authorities will need to provide full justifications for whatever their conclusions may be in response to whatever the parental representations may be. I hope that the noble Baroness will be reassured on thatbasis that we are with her in spirit, the guidance will deliver what she seeks to achieve and that she does not need to take the amendment further.
	The new clause introduced by Amendment No. 67 would require a local authority to hold a competition for a new foundation, voluntary or foundation special school or academy if prescribed conditions about the standard of education and the extent of diversity in the authority were not met. Competitions are intended to be held where proposals for a new school need to be published. They could well include cases where pupil numbers are increasing, where there is a replacement required for a failing school or where schools are being reorganised in an area. However, it is for the local authority, as commissioner, to decide whether a new school is needed, or whether it might be preferable to reorganise in some other way, perhaps involving the addition of places at existing schools.
	We also recognise that proposers might wish to come forward with proposals for new schools without waiting for the local authority to issue an invitation. We have therefore provided in Clause 10 for them to be able to do so with the consent of the Secretary of State.
	I hope that these proposals, taken in the round, will satisfy the noble Baroness. They represent our extensive discussions on how we would take these provisions forward in another place. The balance is now right. In their role as champions of parents and quality assurers of provision in their local areas, local authorities must deploy a range of measures, not just to attract new schools—the issue raised by the noble Baroness—or to expand good schools, but also to assist and turn around weak schools and encourage ambition in coasting schools. We have a set of policies in place to encourage those outcomes, which needto be seen alongside the issue of competitions and parental representations.